Columbia  Hmbcrsttp 


CONSTITUTIONAL  POWER 
AND  WORLD  AFFAIRS 

GEORGE  BLUMENTHAL  FOUNDATION 
1918 


COLUMBIA  UNIVERSITY  PRESS 
SALES  AGENTS 


NEW  YORK 

LEMCKE  &  BUECHNER 
30-32  EAST  20TH  STREET 

LONDON 

HUMPHREY  MILFORD 
AMEN  CORNER,  E.G. 

SHANGHAI 

EDWARD  EVANS  &  SONS,  LTD. 
30  NORTH  SZECHUEN  ROAD 


r   COLUMBIA   UNIVERSITY  LECTURES  ) 


CONSTITUTIONAL  POWER 
AND  WORLD  AFFAIRS 


BY 


GEORGE  IgUTHERLAND 

FORMER  UNITED  STATES  SENATOR  FROM  UTAH 


COLUMBIA  UNIVERSITY  PRESS 
1919 

All  rights  reserved 


COPYRIGHT,  1919 
BY  COLUMBIA  UNIVERSITY  PRESS 

Set  up  and  electrotyped.        Published  February,  1919 


CONTENTS 

Chapter  Page 

I.   The  Great  War — Democracy  and  the 
Constitution 

Magnitude  and  meaning  of  the  war;  German 
intolerance;  the  policy  of  non-resistance;  consent 
of  the  governed ;  American  Constitution  not  un- 
democratic; Constitution  stabilizes  principles  and 
institutions;  advantage  of  written  Constitution; 
development  of  world  relations;  effect  of  war  on 
our  future  relations;  power  and  responsibility  in 
world  affairs;  international  status  for  Monroe 
Doctrine  I 

II.   The  Powers  of  the  National  Govern- 
ment 

Advantages  of  representative  government;  sov- 
ereignty and  government;  Nation  the  source  of 
power  both  state  and  national;  internal  and  ex- 
ternal powers;  differing  views  of  constitutional 
construction ;  Constitution  a  mandate,  not  a  com- 
pact; nature  of  internal  and  external  powers  es- 
sentially different,  illustrations;  internal  powers 
distributed;  external  powers  vested  in  Nation 
only;  Tenth  Amendment;  internal  powers  of  gen- 
eral government  limited  to  affirmative  grants; 
external  powers  limited  by  prohibitions.  24 

III.   The  External  Powers — Extent  and  Lim- 
itations 

Elasticity  of  Constitution;  meaning  unchanging 
but  application  indefinitely  flexible;  express  and 
implied  powers;  resulting  powers;  acquisition  of 
new  territory;  extra-constitutional  not  necessarily 
unconstitutional;  views  of  Supreme  Court;  alien 


vi  CONTENTS 

Chapter  Page 

and  sedition  laws;  Chinese  exclusion  and  expul- 
sion; basis  of  territorial  government  is  national 
supremacy;  insular  possessions;  views  of  Ex-Sen- 
ator Root;  doctrine  of  extension  of  Constitution 
ex  proprio  vigore;  plenary  power  of  Congress  over 
territories  and  possessions;  fundamental  rights  of 
inhabitants.  4^ 

IV.   The  War  Powers — Nature,   Basis  and 
Distribution 

Division  between  Congress  and  President;  in- 
herent attribute  of  sovereignty;  powers  generally 
in  Congress;  no  war  powers  in  President  as  such; 
attach  only  to  office  of  Commander-in-Chief; 
growth  of  executive  domination;  government  of 
enemy  territory ;  military  government  after  peace ; 
the  Philippines;  martial  law;  confined  to  field  of 
military  operations;  state  enforcement  of;  suspen- 
sion of  writ  of  habeas  corpus.  7^ 

V.   The  War  Powers — Extent  and  Limita- 
tions 

The  legal  tender  cases;  war  powers  substanti- 
ally unlimited ;  necessity  of  such  construction ;  in- 
dividual rights  subordinate  to  war  powers;  illus- 
trations; supremacy  over  state  powers;  protection 
of  civil  rights  of  men  in  military  service;  disor- 
derly houses;  espionage  act;  sedition;  disloyal 
words  and  acts;  conscription;  enlarging  powers  of 
executive  by  statute;  enumeration  and  discussion 
of  recent  acts  of  Congress;  confiscation,  requisi- 
tion, regulation.  9^ 

VI.   The  Treaty-Making  Power — General 

An  attribute  of  sovereignty;  never  possessed  by 
states  severally;  an  original  and  exclusive  national 
function ;  power  confirmed  rather  than  created  by 
Constitution;  definition  of  treaty;  international 
compacts  not  necessarily  treaties  under  the  Con- 


CONTENTS  vii 

Chapter  Page 

stitution;  illustrations;  authority  of  Senate  to 
initiate;  wisdom  of  vesting  power  in  Executive 
and  Senate;  Senate  may  amend;  necessity  of  co- 
operation between  President  and  Senate;  arbitra- 
tion treaties;  delegation  of  power;  question  of 
national  honor,  etc.;  treaty  as  law  of  the  land; 
not  'scraps  of  paper'.  1 1 6 

VII.   The  Treaty- Making  Power — How  Far 
Limited 

Limitations  imposed  by  international  law;  by 
the  Constitution;  how  far  foreign  governments 
must  take  notice  of  the  Constitution;  extent  of 
limitations  under  Constitution;  views  of  Justice 
Field;  Calhoun's  enumeration;  examination  of 
these  views;  power  to  cede  state  territory;  to  deal 
with  matters  committed  by  the  Constitution  to 
Congress;  aliens  and  foreign  commerce;  powers 
of  Congress  extended  beyond  those  enumerated, 
when  necessary  to  enforce  treaties;  supremacy 
over  state  powers;  not  subject  to  police  powers  of 
state ;  Nation  may  enforce  whatever  it  may  promise.  1 4 1 

VIII.   After  the  War 

Problems  following  the  war;  need  of  liberal 
constitutional  construction  in  external  affairs;  the 
public  defense;  perpetual  peace  a  delusion;  spir- 
itual preparedness;  internationalism  and  patriot- 
ism; material  preparedness;  vital  necessity  of 
military  preparedness;  militarism;  League  of  Na- 
tions to  Enforce  Peace,  its  difficulties  and  dangers; 
an  international  court  of  justice  feasible  and  de- 
sirable. 1 66 

Index  193 


CHAPTER  I 

THE  GREAT  WAR— DEMOCRACY  AND 
THE  CONSTITUTION 

For  four  years  the  world  has  been  swept  and  tossed 
by  a  great  storm  of  human  passion.  Until  very  recently 
the  only  thing  of  which  we  could  be  certain  was  that 
the  storm  would  pass  and  the  sun  of  peace  again  appear; 
but  when  and  under  what  circumstances,  we  could  only 
guess.  At  last  the  skies  have  cleared  and  the  end  has 
come. 

In  the  natural  world  when  the  rain  has  ceased  and 
the  winds  have  fallen  we  look  about  to  see  what  mon- 
archs  of  the  forest  have  been  up-rooted;  what  new 
channels  have  been  torn  in  the  soil  by  flood  and  torrent 
along  which  the  peaceful  streams  may  thereafter  flow. 
In  the  same  way  with  the  end  of  this  war  we  may,  with 
profit,  look  about  us  for  the  purpose  of  approximating 
the  changes  which  have  been  wrought  in  the  world,  and 
the  meaning  and  effect  of  these  changes  so  far  as  we 
are  ourselves  concerned.  In  the  midst  of  it,  with  the 
end  in  doubt,  all  we  could  foresee  was  that  the  familiar 
world  which  we  had  known  and  understood  would  for- 
ever pass  away,  and  that  a  new  and  different  world 
would  be  spread  before  our  vision.  Whether  it  was  to 
be  a  worse  world  has  at  length  been  removed  from  the 
realm  of  uncertainty,  and  it  has  been  made  sure  that 
because  of  the  triumph  of  the  ideals  for  which  we  have 
been  fighting,  it  has  fallen  to  ourselves  and  our  allies 


2         CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

to  make  it  a  far  better  world  than  we  have  ever  known. 

When  the  struggle  began  we  were  filled  with  horror 
and  bewilderment.  It  was  difficult  to  determine  what 
it  was  all  about.  But  as  time  passed  we  saw,  at  first 
dimly  and  then  with  great  clearness,  that  it  was  not  a 
contest  between  contending  armies  alone,  or  between 
contending  nations  or  peoples  alone ;  but  that  the  under- 
lying causes  were  to  be  found  in  the  antagonisms  of  two 
opposing  political  systems,  teaching  irreconcilable  doc- 
trines: one  that  sovereignty — the  plenary  power  to 
determine  all  questions  of  government  without  account- 
ability to  any  one — is  in  the  people  and  nowhere  else; 
the  other  that  sovereignty  is  a  king's  chattel  to  be 
handed  down  from  father  to  son.  The  first  view  is 
embodied  in  the  words  of  the  American  Declaration  of 
Independence,  that  "governments  are  instituted  among 
men  deriving  their  just  powers  from  the  consent  of 
the  governed."  The  other  view  has  been  nowhere  more 
happily  expressed  than  by  the  late  German  Kaiser 
himself  in  a  speech  delivered  before  the  war,  in  which 
he  is  reported  to  have  said:  "You  Germans  have  only 
one  will  and  that  is  my  will;  you  have  only  one  law 
and  that  is  my  law;  there  is  but  one  master  in  this 
country  and  I  am  he,  and  whoever  opposes  me  I  will 
crush  into  pieces." 

In  the  last  analysis  it  was  against  this  brutal  and 
arrogant  conception  of  personal  and  autocratic  sov- 
ereignty that  the  free  peoples  of  the  world  set  themselves 
to  the  grim  business  of  war.  The  character  of  the 
parties  arrayed  against  one  another  gave  additional 
emphasis  to  the  nature  of  the  issue.  Upon  one  side 
there  was  heroic  Belgium  with  bloody  but  unbowed 


THE  GREAT  WAR  3 

head;  liberty-loving  Italy;  beloved  France,  land  of 
liberty,  equality  and  fraternity;  sturdy,  stubborn  Eng- 
land,homeof  religious  and  political  tolerance,  birth-place 
of  Anglo-Saxon  liberty;  and,  finally,  and  almost  too  late, 
America,  land  of  the  "free  hearts' hope  and  home,"  whose 
gates  have  always  swung  inward  to  the  oppressed  of 
every  other  land.  Upon  the  other  side  there  were  Ger- 
many, whose  master  was  the  Kaiser;  Austria,  whose 
master  was  the  Emperor;  Turkey,  whose  master  was 
the  Sultan.  In  short,  nearly  all  the  peoples  of  the  earth 
whose  rulers  were  their  servants  stood  finally  in  battle- 
line  against  nearly  all  the  peoples  of  the  earth  whose 
rulers  were  their  masters.  Into  this  gigantic  maelstrom 
a  billion  people  were  precipitated  until  substantially 
the  whole  civilized  world  became  involved.  The  face 
of  Europe  has  been  drenched  with  blood  and  made  a 
place  of  indescribable  horror.  The  eye,  turning  in  any 
direction,  beheld  only  the  somber  and  terrifying  clouds 
of  war.  The  struggle  has  been  so  titanic  that  adjectives 
have  become  meaningless.  Recorded  history  furnishes 
no  parallel.  Past  wars  have  shrunk  to  the  dimensions 
of  insignificance.  The  campaigns  of  Alexander,  of 
Caesar,  of  Napoleon,  dwindle  by  comparison  to  the 
proportions  of  neighborhood  riots.  Armed  forces  so 
great,  a  battlefield  so  vast,  issues  so  momentous  have 
never  existed  since  the  legions  of  darkness  were  over- 
thrown by  the  legions  of  light,  and  "hurled  headlong" 
from  the  crystal  battlements  into  the  infernal  pit. 

A  few  months  ago  when  the  German  armies  were 
pressing  swiftly  toward  Paris  there  came  to  us  a  vivid 
and  uncomfortable  realization  of  the  dangers  we  were 
facing.  Democracy  we  knew  was  righteous,  but  we 


4        CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

were  confronted  with  the  appalling  possibility  that  it 
might  not  be  efficient;  and  we  were  called  upon,  at 
whatsoever  cost,  to  strengthen  it  or  perish ;  for  of  what 
avail  is  righteousness  if  it  cannot  be  preserved  from 
destruction? 

Let  it  be  said  to  our  credit  that  the  faint-hearted 
among  us  were  few.  Instinctively  we  had  faith;  and 
we  never  doubted  that  somehow  in  the  end  there  would 
spring  not  a  foul  weed  but  a  lovely  flower  from  the 
blood-soaked  soil  of  France  and  Flanders. 

That  Germany  has  lost  and  civilization  has  won,  has 
been  as  much  due  to  German  blunders  as  to  Allied  skill 
and  courage.  If  her  higher  strategy  and  diplomacy  had 
been  equal  to  her  military  strength,  the  world  would 
now  have  a  German  master.  For  forty  years,  as  we 
now  know,  she  coldly  plotted  this  war.  She  builded 
and  perfected  a  military  machine  that  seemed  invin- 
cible. Her  plans,  skillfully  drawn,  were  apparently 
flawless.  By  all  the  rules  of  military  mathematics 
there  was  no  physical  power  able  to  stand  against  her. 
But  the  factor  which  finally  determines  in  human  affairs 
is  the  imponderable,  and  Germany  forgot  there  was  a 
human  soul.  She  knew  Belgium  was  small  and  weak, 
but  she  did  not  realize  that  the  soul  of  Belgium  was 
unconquerable.  The  bodies  of  Englishmen  she  knew 
were  untrained,  but  she  should  have  remembered  that 
the  English  spirit  had  been  disciplined  in  the  school  of 
battle  for  a  thousand  years.  She  looked  upon  us  as  a 
nation  of  money  grubbers  who  cared  for  nothing  but 
our  own  ease,  and  did  not  know  that  we  loved  justice 
more  than  we  hated  war.  And  so  Belgium  fought  almost 
with  bare  hands;  England  welded  her  raw  levies  into 


THE  GREAT  WAR  5 

armies  of  invincible  soldiers;  Italy  drew  the  sword; 
and  at  last  America  became  an  armed  camp  from  which 
millions  of  her  young  men  have  poured  forth  to  battle. 
From  Switzerland  to  the  sea  the  men  of  France,  Bel- 
gium, Italy,  Great  Britain  and  America  builded  of  their 
own  bodies  a  living  wall  of  flesh  against  which  the 
veteran  armies  of  the  Central  Powers  beat  in  vain  until 
at  last  the  wall  became  a  flood  and  swept  back  toward 
the  Rhine  those  whom  it  did  not  engulf. 

It  has  been  no  holiday  enterprise  in  which  we  have 
been  engaged,  but  stern  and  deadly  business;  for  this 
was  the  alternative  we  faced — this  and  no  lesser  thing 
—that  either  we  must  destroy  military  Germany  or 
military  Germany  would  destroy  us.  Under  the  cir- 
cumstances we  would  have  been  guilty  of  black  treason 
to  have  kept  out  of  the  war;  treason  to  everything 
which  we  were  bound  to  hold  sacred;  treason  to  the 
millions  of  brave  men  who  have  died  upon  land  and 
sea  for  a  cause  that  was  also  our  cause ;  treason  to  the 
millions  of  hopelessly  maimed  who  will  never  know  the 
full  joys  of  life  again;  treason  to  the  suffering  souls  of 
thousands  of  good  women  who  have  been  unspeakably 
wronged;  treason  to  the  murdered  children  of  Europe 
and  to  our  own,  a  vision  of  whose  white,  dead  faces, 
tossing  upon  a  cold  sea  and  upturned  to  the  stars,  would 
never  have  ceased  to  be  a  haunting  and  unanswerable 
reproach.  I,  for  one,  shall  never  cease  to  thank  God 
that  we  escaped  from  this  abhorrent  plight  while  yet 
there  was  time. 

For  two  years  and  a  half  we  deluded  ourselves  with 
the  fiction  that  the  war  was  exclusively  a  European 
affair  in  which  we  had  nothing  more  than  a  sentimental 


6        CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

interest.  Belgium  was  invaded,  her  towns  pillaged  and 
destroyed,  her  people  outraged,  enslaved,  murdered. 
We  closed  the  ears  of  our  reason  to  the  sinister  threat 
which  this  conduct  implied  against  our  own  liberties 
and  possessions.  We  shut  the  eyes  of  our  imagination 
and  would  not  see  the  dark  shadow  which  it  cast  over 
the  possible  future  of  our  own  land.  Belgium  was 
thought  to  be  protected  by  formal  treaty.  She  was 
without  offense  even  against  Germany,  save  that  she 
objected  to  the  use  of  her  territory  as  a  military  high- 
way for  the  passage  of  German  armies  on  their  way  to 
a  swift  defeat  of  France,  and  thereby  refused  to  become 
a  criminal  accomplice  in  an  attack  upon  a  friendly 
neighbor,  who  was,  moreover,  one  of  the  guarantors 
of  her  neutrality.  The  treaty  guaranteeing  Belgium's 
neutrality  became  a  "scrap  of  paper"  and  the  arm  of 
Belgium,  raised  in  just  opposition  to  an  atrocious  tres- 
pass, was  stricken  down  with  brutal  circumstance  as 
though  it  had  been  lifted  not  in  self-defense  but  against 
God's  anointed.  Not  only  this,  but,  in  an  effort  to 
justify  the  wanton  and  brutal  assault,  Germany  after- 
ward assailed  and  falsely  impugned  the  good  faith  of 
her  victim — as  outrageous  a  proceeding  as  though  an 
individual,  having  made  an  attack  upon  a  pure  woman, 
should  seek  to  excuse  himself  by  circulating  vile  slanders 
against  her  good  name. 

The  violation  of  the  neutrality  of  Luxembourg, 
though  not  followed  by  the  same  tragic  consequences, 
was,  in  its  inception,  worse  than  the  violation  of  Bel- 
gium. The  neutrality  of  Luxembourg  was  not  only 
guaranteed  by  a  treaty  to  which  Prussia  was  a  party 
in  1867,  and  which  had  been  categorically  recognized  as 


THE  GREAT  WAR  7 

binding  by  and  upon  the  German  Empire,  but  the 
Duchy  was  prohibited  from  arming  itself  for  its  own 
defense.  Thus  the  invasion  was  not  only  a  gross  breach 
of  the  solemn  obligation  to  which  the  German  govern- 
ment was  pledged,  but  it  was  a  wicked  assault  upon  a 
weak  and  utterly  defenseless  people,  as  contemptible 
and  cowardly  as  the  assault  of  a  powerful  bully  upon 
a  defenseless  child. 

And  so  the  temper  and  purpose  of  Germany  stood 
revealed.  Pledges  were  no  longer  binding,  treaties  were 
no  longer  sacred,  international  faith  was  a  lie,  possession 
of  anything  which  Germany  wanted  was  casus  belli, 
and  the  rights  of  the  weak  or  defenseless  were  to  be 
measured  by  Prussian  needs  and  might.  Every  con- 
sideration of  humanity  and  chivalry  called  for  an  in- 
dignant protest  upon  our  part  against  these  cynical 
and  bloody  violations  of  international  decency.  But 
laying  this  aside,  we  were  ourselves  gravely,  yea,  vitally, 
concerned,  because  the  incidents  constituted  clear  warn- 
ing that  a  wild  beast  was  at  large  from  whose  rage  we 
were  no  more  immune  than  was  Belgium.  When  Bel- 
gium was  invaded  we  should  have  remembered  that 
Mexico  lay  along  our  southern  flank  as  Belgium  lay 
along  the  northern  flank  of  France,  and  if  we  did  not 
condemn  the  use  of  neutralized  Belgium  to  attack 
France,  the  day  might  come  when  France  and  the 
friends  of  France  might  look  with  small  concern  upon 
the  use  of  the  territory  of  a  neutral  Mexico  through 
which  to  attack  us. 

Finally,  we  became  ourselves  the  victims  of  direct 
aggression.  Our  ships  were  sunk  and  our  citizens  mur- 
dered upon  the  high  seas  and  we  were  arrogantly  in- 


8        CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

formed  that  we  might  travel  that  common  highway  of 
all  nations  only  upon  such  humiliating  conditions  as 
Germany  saw  fit  to  impose.  Even  then  a  large  body  of 
our  people  favored  a  continuation  of  the  weak  and  dan- 
gerous policy  of  diplomatic  negotiation.  They  shrank 
before  the  inevitable  and  even  insisted — some  of  them — 
that  we  had  no  power  to  send  an  army  overseas,  but 
must  await  an  actual  invasion  of  our  own  soil  before 
resorting  to  armed  force.  They  were  utterly  wrong, 
of  course,  for  the  Constitution  contemplates  offensive, 
as  well  as  defensive  warfare,  since  it  recognizes  not  only 
the  power  to  repel  invasions  but  confers  the  power  to 
declare  war.  It  was  never  intended  that  peace  at  any 
price  should  become  the  policy  of  a  people  whose  very 
independence  was  forced  at  the  point  of  the  sword. 

An  individual  having  only  himself  to  consider  may 
act  in  conformity  to  his  personal  taste.  If  he  choose  the 
course  of  non-resistance  to  physical  aggression,  however 
intolerable,  that  is  his  own  affair,  and  it  is  not  without 
the  sanction  of  high  authority,  though  the  justification 
would  depend,  I  should  think,  upon  whether  the  non- 
resistance  were  the  result  of  high  principle  or  of  coward- 
ice— dictated  by  one's  own  free  choice  or  by  the  imposed 
will  of  another.  That  it  is  better  to  suffer  wrong  than 
to  do  wrong  is  a  sentiment  of  such  obvious  truth  and 
nobility  as  to  be  beyond  question,  but  it  does  not  follow 
that  it  is  better  to  suffer  wrong  than  to  resist  it.  If  it 
be  righteous  to  passively  submit  to  aggression  when 
only  the  wrong-doer  and  the  wronged  are  concerned, 
or,  to  go  even  further  and  turn  the  other  cheek,  I  am 
afraid  I  am  hopelessly  heterodox;  for  it  seems  to  me 
far  better  to  fight  wrong  with  all  one's  strength,  though 


THE  GREAT  WAR  9 

directed  against  one's  self  alone,  until  the  wrong-doer 
has  been  lain  in  the  dust  or  one  can  fight  no  more. 
Even  in  matters  of  purely  personal  concern  I  should 
turn  the  other  cheek  with  the  greatest  possible  re- 
luctance. 

But  whatever  may  be  the  ethics  of  the  matter  in  the 
case  of  the  individual,  the  government  of  a  self-respect- 
ing people  should  be  swayed  by  no  such  sentiment.  The 
individual  represents  only  himself;  but  the  government 
is  a  trustee,  wielding  the  power  and  safeguarding  the 
rights  of  those  who  created  and  continue  it.  If  those  in 
control  of  the  government  yield  to  the  aggressor,  they 
do  not  yield  their  own;  they  betray  the  trust.  The 
Golden  Rule  in  such  case  is:  "Do  not  suffer  others  to 
do  unto  you  what  you  should  not  do  unto  them." 
Think  of  the  tragic  consequences  to  the  world  if  brave 
Belgium  had  turned  the  other  cheek! 

This  struggle  in  which  we  have  been  engaged  in  so 
large  a  way  the  world  has  witnessed  in  a  small  way  many 
times.  Sometimes  victory  has  favored  one  view  and 
sometimes  the  other,  but  in  the  aggregate  of  the  last 
century  and  a  half  of  history  the  balance  greatly  pre- 
ponderates in  favor  of  the  popular  side.  When  the 
American  Declaration  of  Independence  was  written 
one  could  live  nowhere  except  among  a  king-ridden 
people.  There  had  been  occasional  gleams  of  light  but 
no  country  had  beheld  the  risen  sun.  Until  1776  no 
people  had  been  found  bold  enough  to  deny  that  the 
powers  of  government  were  derived  from  the  consent 
of  the  ruler,  albeit  from  time  to  time  the  denial  of  an 
occasional  individual  had  been  recorded.  Men  of 
courageous  soul  had  faced  the  King  and  compelled  his 


10      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

reluctant  recognition  of  certain  fundamental  concep- 
tions of  popular  liberty.  Magna  Charta,  the  Petition 
of  Right,  the  Bill  of  Rights,  and  other  charters  of 
English  liberty  had  been  grudgingly  granted  by  the 
Kings  of  England.  The  lasting  importance  of  these 
concessions  cannot  be  overestimated.  They  constitute 
the  footing-stones  of  individual  rights  today — the  com- 
mon heritage  of  Anglo-Saxons  everywhere.  But  the 
significant  fact  is  that  they  were  concessions  made  by 
the  King,  and  not  rights  recognized  as  inherent  in  the 
people  which  no  king  had  the  power  to  withhold.  The 
very  fact  that  they  were  wrung  from  the  King  was  a 
recognition  that  the  King  and  not  the  people  consti- 
tuted their  source.  If  their  existence  depended  upon 
the  royal  grant  even  though  compelled  by  the  people 
against  the  royal  wish,  it  logically  follows  that  the  ulti- 
mate repository  of  power  was  the  governor  and  not 
the  governed. 

The  American  Revolution,  however,  proceeded  upon 
the  principle  that  sovereignty  belongs  to  the  people, 
and  it  is  by  their  consent,  either  express  or  implied, 
that  the  governing  agency  acts  in  any  particular  way, 
or  acts  at  all.  This  is  the  animating  principle  of  the 
Declaration  of  Independence.  It  is  the  very  soul  of 
the  Constitution,  which  at  once  proclaims  and  bears 
witness  to  the  fact  that  ultimate  power  resides  only 
with  the  people.  It  has  become  the  fashion  in  some  cir- 
cles to  denounce  the  written  Constitution  as  undemo- 
cratic, as  an  unwarranted  restraint  upon  the  freedom 
of  the  people  to  move  forward;  but  in  truth  it  is  the 
most  democratic  thing  we  possess,  for  it  is  the  one  thing 
above  all  other  things  that  makes  articulate  and  clear 


DEMOCRACY  AND  THE  CONSTITUTION  II 

the  claim  that  all  political  power  comes  from  the  people. 
It  is  the  one  thing  above  all  other  things  that  makes 
the  government  which  it  establishes  a  servant  of  the 
people  and  prevents  it  from  becoming  their  master; 
for  it  is  the  supreme  law  by  which  the  people  affirm 
their  sovereignty  and  constitute  their  agents  to  exer- 
cise it  to  such  extent,  and  in  such  form,  as  they  decree. 
It  speaks  the  language  of  paramount  authority:  "We, 
the  people  .  .  .  do  ordain  and  establish  this  Constitu- 
tion for  the  United  States  of  America."  In  the  stately 
phrase  of  Webster:  "It  is  the  people's  Constitution, 
the  people's  government,  made  for  the  people  and 
answerable  to  the  people." 

The  limitations  of  the  Constitution  are  not  bonds 
which  fetter  the  people;  they  are  restraints  imposed 
by  the  people  themselves  upon  the  government  which 
they  have  created  as  an  instrumentality  through  which 
they  rule  in  order  that  their  creature  may  never  forget 
that  it  has  a  creator.  Even  in  democratic  England, 
where  the  King  may  do  anything  he  likes  except  rule, 
and  the  popular  will  as  expressed  by  the  majority  gen- 
erally prevails,  sovereignty  does  not  rest  in  the  people 
but  in  Parliament ;  and  indeed  for  all  practical  purposes 
not  in  Kings,  Lords  and  Commons,  but  in  the  House  of 
Commons  alone.  Parliament  may  do  anything.  There 
is  no  limit  to  its  political  power.  There  is  no  such  thing 
as  a  completely  sovereign  English  people,  or  if  there  be,  it 
is  only  in  a  highly  theoretical  sense,  for,  practically  speak- 
ing, Parliament  is  omnipotent,  sovereign,  without  limita- 
tion or  qualification.  The  outstanding  difference  be- 
tween the  traditional  English  Constitution  and  our 
written  Constitution  is,  therefore,  that  the  former  estab- 


12      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

lishes  no  restraint  upon  Parliament,  while  the  latter  is 
an  ever-sounding  proclamation  that  the  people's  sov- 
ereignty has  not  been  abandoned  to  any  department  of 
the  government  or  to  all  departments  combined,  but 
only  delegated  in  certain  specified  particulars.  And  the 
Ninth  and  Tenth  Amendments  declare :  "The  enumera- 
tion in  the  Constitution  of  certain  rights  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the 
people;"  "The  powers  not  delegated  to  the  United 
States  .  .  .  are  reserved  to  the  States  respectively 
or  to  the  people."  To  destroy  the  Constitution  would, 
therefore,  be  to  destroy  this  high  evidence  that  ulti- 
mate sovereignty  remains  with  the  people,  that  the 
government  is  a  mere  instrumentality  which  exists  for 
the  sake  of  the  people  instead  of  the  people  existing 
for  the  sake  of  the  government,  and,  moreover,  as  the 
Fathers  thought,  to  open  the  door  of  opportunity  for 
stealthy  appropriations  of  power  on  the  part  of  our 
governmental  agencies  which  might  finally  reach  dan- 
gerous proportions.  And  so  I  repeat,  for  the  sake  of 
emphasis,  that  the  Constitution  is  the  most  democratic 
of  our  possessions,  democratic  in  every  phrase  and 
sentence,  for  in  every  phrase  and  sentence  it  speaks 
the  will  of  the  people,  those  who  made  it  and  ratified 
it  in  the  beginning,  those  who  have  maintained  it  and 
added  to  it  since,  and  those  whose  will  it  speaks  today 
and  whose  will  it  must  continue  to  speak  until  they, 
in  the  exercise  of  their  sovereign  authority,  see  fit  to 
put  something  else  in  its  place. 

The  Constitution  is,  of  course,  not  perfect.  The  mak- 
ers themselves  did  not  so  consider  it,  since  they  pro- 
vided for  its  alteration  and  extension  by  amendment. 


DEMOCRACY  AND  THE  CONSTITUTION  13 

One  of  its  great  virtues  is  that  it  fixes  the  rules  by  which 
we  are  to  govern  and  by  which  we  are  to  be  governed. 
The  value  of  a  settled  rule  of  conduct  is  not  alone  that 
men  may  be  compelled  to  do  justice;  it  is  also  that 
they  may  know  what  they  are  to  do,  and  how  they  are 
to  do  it.  Hence  the  justice  and  wisdom  of  the  rule  and 
its  certainty  are  almost,  and  sometimes  quite,  of  equal 
importance.  I  have,  for  example,  no  doubt  that  a  much 
larger  proportion  of  the  decisions  of  courts  are  wrong 
than  is  generally  suspected;  but  a  decision  right  or 
wrong,  settles  the  case,  and  very  often  settles  the  ques- 
tion as  well.  The  parties  concerned  know  what  they 
may  or  may  not  do  in  the  future.  Even  if  the  decision 
be  wrong  the  doctrine  of  res  judicata  prevents  any 
change  which  will  affect  the  immediate  cause,  and  the 
doctrine  of  stare  decisis  constrains  the  courts  to  follow 
it  in  other  cases  unless  the  vice  of  the  decision  be  pretty 
clearly  apparent.  Thus  much  of  principle  we  may  be 
called  upon  to  sacrifice  to  the  advantage  of  stability. 
If  it  be  so  important  to  stabilize  the  decisions  of  courts 
which  may  affect  only  one's  pocket-book  or  one's  prop- 
erty, how  much  more  important  is  it  to  stabilize  those 
great  principles  of  government  and  of  liberty  which 
lie  at  the  foundation  of  the  social  structure ! 

There  are  two  ways  of  stabilizing  these  fundamental 
principles:  by  the  force  of,  and  common  respect  for, 
long  continued  custom  which  is  advisory,  and  by  formal 
convention  which  is  compelling.  The  former  is  illus- 
trated by  the  Constitution  of  Great  Britain,  and  the 
latter  by  the  American  Constitution. 

We  hear  it  said,  sometimes,  that  our  desires  to  work 
out  new  and  enlarged  conceptions  of  social  justice  are 


14 

constantly  thwarted  by  the  restraining  limitations  of 
our  Constitution,  and  it  is  impatiently  suggested  that 
if  Great  Britain  can  get  along  safely  and  more  expedi- 
tiously  under  an  advisory  Constitution  there  is  no  rea- 
son why  our  progress  should  be  impeded  by  the  restric- 
tions of  a  mandatory  Constitution.  But  the  cases  are 
not  parallel.  The  English  Constitution  is  the  result  of 
many  centuries  of  slow  development.  It  has  grown  as 
the  people  and  their  institutions  have  grown,  "bone  of 
their  bones  and  flesh  of  their  flesh."  It  is  not  a  force 
acting  upon  the  various  instrumentalities  of  govern- 
ment, but  a  force  of  and  within  them.  It  molds  and 
directs  their  conduct  by  inward  admonition  rather 
than  by  outward  compulsion.  It  is  not  an  ordinance 
like  the  American  Constitution,  establishing  and  limit- 
ing political  institutions,  but  a  spirit  which  accompanied 
the  development  of  these  institutions  and  grew  with 
them,  and  constitutes  in  a  very  real  sense  their  expres- 
sion and  interpretation. 

Regard  for  and  obedience  to  the  British  Constitution 
by  the  governmental  agencies  of  Great  Britain  are  in- 
stinctive and  habitual — not  because  it  is  so  ordered,  but 
because  it  is  the  thing  to  do.  Failure  or  refusal  would 
be  followed  by  no  positive  consequences;  everybody 
simply  would  be  more  or  less  shocked. 

At  the  conclusion  of  the  Revolutionary  struggle,  how- 
ever, we  found  ourselves  a  nation  of  people  with  no 
common  and  traditional  polity.  The  American  Nation 
did  not  grow  as  the  British  Nation  grew,  from  small 
beginnings  and  little  by  little.  It  sprang  into  full 
maturity  at  once.  As  a  political  society  it  could  not 
endure  without  a  constitution  of  government,  and  hav- 


DEMOCRACY  AND  THE  CONSTITUTION  15 

ing  none  by  growth  it  was  obliged  to  make  one  by  con- 
trivance and  construction. 

An  illustration  may  help  to  make  clear  the  distinction. 
Suppose  four  or  five  adventurous  explorers  should  come 
together  in  a  new  country  and  find  themselves  its  sole 
occupants.  They  would  readily  arrive  at  an  under- 
standing, without  formality  or  writing,  of  the  few  simple 
rules  necessary  for  the  regulation  of  their  intercourse. 
Other  persons  joining  them  from  time  to  time,  there 
would  be,  perhaps  at  the  end  of  a  long  period,  a  large 
and  constantly  augmenting  population.  Under  these 
conditions,  the  political  and  social  institutions  of  the 
country,  and  the  fundamental  principles  regulating  their 
relations  to  the  people,  would  take  form  and  develop 
by  insensible  degrees.  The  process  would  be  like  the 
movement  of  the  large  hands  of  a  clock  which  we  never 
see,  and  which  we  perceive  from  time  to  time  only  by 
comparison  after  the  movement  has  taken  place. 

On  the  other  hand,  let  us  suppose  that  a  multitude 
of  people  suddenly  found  themselves  without  political 
institutions  and  governing  rules.  The  impossibility  of 
informal  understandings  would  be  apparent,  and  their 
only  escape  from  disorder  and  chaos  would  be  to  adopt 
a  system  of  rules  which,  to  avoid  future  dispute  and 
misunderstanding,  must  be  set  down  in  explicit  terms. 
The  difference  is  between  a  polity  which  has  grown  and 
a  polity  which  has  been  made.  Our  written  Constitu- 
tion was,  therefore,  the  original  and  necessary  means  of 
giving  expression  and  sanction  to  the  fundamental  law 
of  the  land  and  of  establishing  governmental  institu- 
tions; and  it  must  remain  not  only  for  this  purpose  but 
as  at  once  the  tie  and  the  indispensable  evidence  of  the 


1 6      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

tie  which  holds  the  states  in  the  bonds  of  indestructible 
and  perpetual  union. 

But  though  the  Constitution  stabilizes  the  principles 
of  government,  it  does  no.t  fix  or  define  these  principles 
minutely  or  in  detail.  The  powers  of  government  are 
conferred  in  broad,  general  terms.  They  are,  as  it  has 
been  frequently  said,  not  defined  but  enumerated ;  and 
this  enumeration  is  more  frequently  in  the  nature  of  a 
statement  of  the  subjects  to  which  the  powers  of  govern- 
ment apply  than  an  enumeration  of  the  powers  them- 
selves. The  authority  of  the  several  departments  of 
government  is,  therefore,  of  great  flexibility.  The  Con- 
stitution was  intended  to  be  perpetual  and  hence  to 
cover  the  changing  needs  of  the  people  and  the  country, 
the  extent  of  which  changes  were  within  the  contempla- 
tion but  not  within  the  knowledge  of  the  framers. 
Within  the  broad  limits  of  the  enumerated  subjects  it 
was  intended  that  power  should  keep  pace  with  need, 
and  that  the  Constitution  should  be  the  source  of  this 
power  as  a  spring  is  the  ever  living  source  of  an  ever 
flowing  stream  and  not  as  a  cistern  is  the  source  of  a 
precisely  measured  and  rigidly  limited  supply. 

The  close  of  the  Revolution  and  the  subsequent  adop- 
tion of  the  Constitution  found  us  with  the  idea  of  popu- 
lar sovereignty  firmly  established  as  the  fundamental 
principle  of  our  political  system.  We  were,  however,  in 
doubt  as  to  the  exact  nature  of  the  system  itself.  Had 
we  created  a  Federation  or  a  Nation?  The  question 
was  the  subject  of  controversy,  always  earnest  and 
sometimes  exceedingly  bitter,  for  more  than  half  a 
century.  Until  the  Civil  War,  the  Union  was  a  theory 
for  debate — to  be  vigorously  denied  and  passionately 


DEMOCRACY  AND  THE  CONSTITUTION  17 

defended — and  the  tie  which  bound  the  states  together 
was  of  uncertain  strength.  Our  people  as  a  whole  were 
groping  in  the  political  twilight  more  or  less  confused 
and  only  dimly  perceived  their  essential  unity.  It 
required  the  shock  of  physical  separation  to  demonstrate 
that  we  were  politically  inseparable,  and  the  dreadful 
sacrifices  of  civil  war  to  put  beyond  dispute  the  fact  of 
nationality. 

Prior  to  the  Spanish-American  War  we  vaguely  appre- 
hended that  we  constituted  a  nation  among  a  family  of 
nations,  but  we  held  ourselves  aloof  from  the  family 
concerns  except  such  as  affected  the  members  on  this 
side  of  the  Atlantic.  From  that  conflict  we  emerged 
a  broadened  empire  with  overseas  possessions,  and  a 
flag  carried  half  around  the  world.  Our  comfortable 
seclusion  had  gone;  our  political  activities  could  no 
longer  be  confined  to  the  Western  Hemisphere.  We 
became  a  world  power;  but,  because  Washington's 
admonition  against  "entangling  alliances"  still  domi- 
nated our  thoughts,  we  did  not  perceive  that  this  en- 
tailed world  responsibilities  which,  with  the  coming  of 
the  occasion,  we  should  be  compelled  to  assume.  That 
occasion  has  now  come,  and  these  responsibilities  we 
are  beginning  to  face.  They  will  more  clearly  appear 
as  time  passes,  and  they  are  not  ended  with  the  ter- 
mination of  the  war;  for  it  is  no  longer  true,  if  it  ever 
was  true,  that  European  international  problems  are  no 
concern  of  ours.  For  the  next  few  years  it  is  certain 
they  will  constitute  our  chief  concern,  and  they  will 
never  hereafter  cease  to  demand  our  careful  considera- 
tion and  solicitude. 


1 8      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

Our  entrance  as  a  participant  in  this  war  signalized 
the  beginning  of  a  new  phase  of  our  national  existence, 
and  a  new  era  in  our  international  relations.  The  ex- 
tent and  character  of  the  changes  which  will  occur  can- 
not be  completely  foreseen.  Much  will  appear  to  begin 
with  only  in  the  form  of  newly  acquired  tendencies,  the 
practical  operation  and  effect  of  which  will  become 
slowly  apparent,  but  which  will  be  of  profound  and  far- 
reaching  consequence  nevertheless.  What,  for  example, 
will  be  the  character  and  extent  of  our  future  participa- 
tion in  the  international  policies  and  politics  of  Europe? 
And  what  will  be  the  effect  of  such  participation  upon 
our  own  institutions  and  people?  Will  there  result 
radical  alterations  in  our  trade  relations  with  the  coun- 
tries with  whom  we  are  allied,  and  the  countries  against 
whom  we  have  been  waging  war?  What  will  be  the 
effect  upon  our  policies  and  laws  regulating  big  busi- 
ness, of  the  demonstrated  inapplicability  and  ineffi- 
ciency of  these  regulations  in  time  of  international 
stress?  Has  the  argument  for  government  ownership 
been  strengthened  or  weakened  by  the  extended  incur- 
sions of  the  national  government  into  the  domain  of 
railroad  and  other  business  management  and  control? 
To  the  solution  of  these  and  other  grave  problems  we 
must  come,  with  chastened  spirit  and  courageous  hearts 
determined  to  play  our  part  in  the  new  world  with 
credit  and  honor.  It  is  no  part  of  my  purpose  to  under- 
take an  extended  discussion  of  the  practical  side  of  any 
of  these  problems.  It  must  be  apparent  to  every  one 
that  the  field  of  national  responsibility  will  be  im- 
mensely broadened  as  a  result  of  the  war,  and  there 
will  be  presented  questions  not  only  relating  to  this 


DEMOCRACY  AND  THE  CONSTITUTION  19 

phase  of  the  matter  but  questions  no  less  important 
relating  to  the  power  of  the  national  government  under 
the  Constitution  to  deal  with  them.  To  this  question 
of  constitutional  power,  particularly  as  it  affects  our 
world  responsibilities,  the  succeeding  discussions  will 
be  mainly  directed. 

Great  changes  have  occurred  in  the  views  of  public 
men  since  the  Constitution  was  adopted  respecting  the 
nature  of  the  government  which  was  instituted  and  the 
extent  and  character  of  the  powers  conferred  upon  it. 
The  differences  which  have  from  time  to  time  arisen 
have  in  large  measure  ceased  to  exist.  They  are  no 
longer  so  many  nor  so  serious  as  they  once  were,  but 
to  some  extent  they  still  persist.  In  the  main,  these 
differences  have  grouped  themselves  about  the  two 
fundamental  and  opposing  theories  of  government 
which  have  divided  us  from  the  beginning:  one,  that 
the  organic  unit  of  our  political  system  is  the  Union, 
and  the  other,  that  it  is  the  states.  The  difference  be- 
tween these  contending  schools  of  political  thought  has 
found  expression  even  in  the  grammatical  form  and 
emphasis  of  our  political  language.  Under  the  first 
theory  the  United  States  is,  while  under  the  second, 
the  United  States  are  a  Nation.  The  nationalistic  con- 
ception has  constantly  grown  in  favor  until  it  has  be- 
come the  prevailing  one,  and  has  even  begun  to  go  too 
far  in  some  particulars  in  that  direction,  and  to  threaten 
the  autonomy  of  the  states,  something,  the  preservation 
of  which  is  vital  to  our  institutions.  Local  self-govern- 
ment is  a  cardinal  and  very  precious  article  in  the 
American  political  faith.  The  many  evidences  of  its 
lessening  hold  upon  the  popular  belief  are  greatly  to 


20      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

be  regretted.  In  a  country  such  as  ours,  of  vast  area 
and  great  population,  of  diversified  industries  and 
greatly  varied  topography  and  climate,  with  here  a 
state  devoted  to  agriculture  and  there  a  state  devoted 
to  manufacturing,  with  all  sorts  of  distinguishing  char- 
acteristics, local  state  governments  with  independent 
and  adequate  powers  are  essentials,  whose  destruction 
would  be  a  disaster  only  less  grave  than  the  destruction 
of  the  Union  itself.  As  the  Supreme  Court  has  wisely 
and  accurately  said:  "The  Constitution  in  all  of  its 
provisions  looks  to  an  indestructible  Union  composed 
of  indestructible  states."  State  power  and  national 
power  are  in  no  wise  antagonistic;  they  are  comple- 
mentary and  together  support  a  political  structure  as 
nearly  perfect  as  human  ingenuity  has  thus  far  been 
able  to  conceive.  The  primary  concern  of  the  states  is 
with  individual  and  local  affairs.  The  primary  concern 
of  the  Nation  is  with  the  interrelations  of  the  states, 
and  their  several  peoples,  and  of  the  sovereign  whole 
with  the  world  outside.  Any  unwarranted  encroach- 
ment upon  the  former  or  any  captious  restriction  of  the 
latter  must  be  alike  avoided,  if  the  symmetry  of  the 
great  governmental  structure  designed  by  the  founders 
is  to  be  preserved.  In  the  field  of  constitutional  power 
which  it  is  my  purpose  to  invite  you  to  enter  no  such 
conflict  can  possibly  arise  because  it  is  a  field  from  which 
the  states  are,  in  any  event,  absolutely  excluded. 

In  all  matters  of  external  sovereignty  the  powers  of 
the  Nation  are  not  only  supreme  but  exclusive,  and  the 
question  whether  a  given  power  in  this  field  shall  be 
exercised  by  the  general  government  or  by  the  states, 
can  never  arise.  The  question  which  does  arise  is  start- 


DEMOCRACY  AND  THE  CONSTITUTION  21 

lingly  simple  and  direct:  May  the  power  be  exercised 
by  governmental  agency  at  all?  A  negative  answer  to 
this  question  in  any  given  case,  it  will  be  seen,  might 
be  of  the  most  serious  consequence.  From  this  condi- 
tion of  affairs  there  must  result,  as  will  be  shown  here- 
after at  length,  a  rule  of  constitutional  construction 
radically  more  liberal  than  that  which  obtains  in  the 
case  of  the  domestic  powers  which  are  distributed  be- 
tween the  general  government  and  the  states.  Any  rule 
of  construction  which  would  result  in  curtailing  or  pre- 
venting action  on  the  part  of  the  national  government 
in  the  enlarged  field  of  world  responsibility  which  we 
are  entering,  might  prove  highly  injurious  or  embarrass- 
ing. We  are,  for  example,  vitally  concerned  in  the  adop- 
tion of  every  possible  safeguard  which  can  be  devised 
to  prevent  a  repetition  of  the  conditions  under  which 
Germany  came  perilously  near  realizing  her  dream  of 
European  dictatorship.  If  it  should  be  necessary  for 
us  now,  or  hereafter,  to  assume  burdens  strange  to  our 
diplomacy  in  order  to  secure  our  future  safety,  it  would 
be  most  unfortunate  if  our  government  should  feel 
obliged  to  decline  the  assumption  of  such  burdens  for 
any  real  or  fancied  lack  of  constitutional  power. 

It  has  been  seriously  suggested  that  we  should  take 
no  part  in  the  adjustment  of  the  so-called  European 
questions,  but  the  war  being  ended  we  should  leave  the 
European  belligerents  to  settle  their  own  affairs  in  their 
own  way.  No  suggestion  could  be  more  fallacious.  The 
balance  of  Europe  has  become  a  matter  with  which  we 
are  profoundly  concerned.  One  of  the  grave  dangers 
of  this  war  has  been  that  Germany  might  become  the 
master  of  Europe;  and  it  always  will  be  of  vital  im- 


22      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

portance  to  us  that  no  single  nation  shall  ever  become 
the  master  of  Europe,  for  the  happening  of  such  a  con- 
tingency would  make  that  nation  automatically  the 
master  of  the  world. 

We  are  seeking  for  ourselves  none  of  the  usual  fruits 
of  conquest — neither  territory  nor  indemnity  for  the 
vast  military  expenses  we  have  incurred.  But  there  are 
things  of  great  importance  which  we  may  justly  ask. 
For  one  thing,  we  should  seek  and  obtain  in  this  general 
world  accounting  the  formal  recognition  and  adoption 
of  the  Monroe  Doctrine.  That  would  be  little  to  ask 
of  our  Allies,  and  little  to  exact  from  our  enemies,  and 
it  might  hereafter  prove  of  incalculable  value  to  us.  The 
Monroe  Doctrine  is  an  essential  part  of  our  defensive 
policy,  since  the  subjugation  of  any  of  the  American 
Republics  by  a  powerful  and  aggressive  nation  would 
constitute  a  standing  menace  to  our  own  future  peace. 
The  reality  and  gravity  of  such  a  menace  has  not  been 
dissipated  because  autocracy  has  been  driven  from  its 
European  strongholds.  That  desirable  condition  of  af- 
fairs may  not  be  permanent ;  but  whether  it  be  or  not, 
even  democracies  are  not  immune  from  national  ambi- 
tions, and  the  desire  for  territorial  expansion  is  a  matter 
quite  apart  from  forms  of  government,  as  our  own  his- 
tory has  frequently  demonstrated.  An  imperious  repub- 
lic might  be  as  dangerous  and  undesirable  a  neighbor  as 
an  imperial  monarchy.  In  any  event,  the  Monroe  Doc- 
trine is,  and  probably  always  will  be,  a  matter  of  grave 
national  importance,  whose  abandonment  under  an  ex- 
cess of  sentiment  to  the  effect  that  the  world  had  finally 
and  perpetually  been  made  safe  for  democracy  would 
be  supremely  unwise.  If  such  a  sentiment  should  turn 


DEMOCRACY  AND  THE  CONSTITUTION  23 

out  to  be  well  founded,  no  harm  will  result  from  the 
maintenance  of  this  traditional  policy,  and  if,  on  the 
other  hand,  it  should  unfortunately,  but  quite  possibly, 
transpire  that  the  sentiment  is  without  foundation,  the 
abandonment  of  the  doctrine  might  prove  expensively 
and  seriously  injurious. 

Important  as  this  doctrine  is,  it  has,  nevertheless, 
thus  far  rested  upon  nothing  more  substantial  than  our 
own  assertion.  With  the  exception  of  Great  Britain, 
it  has  never  received  even  the  tacit  approval  of  Europe. 
The  present  situation  presents  an  opportunity  which 
may  never  come  again,  to  obtain  for  it  the  force  of  inter- 
national sanction. 

The  Peace  Council  about  to  convene  in  Europe  will 
be  the  most  important  gathering  of  men  ever  assembled 
together.  The  future  worth  of  human  society,  the 
future  peace  of  nations,  the  future  progress  and  orderly 
liberty  of  mankind,  are  involved  in  its  deliberations. 
The  world  has  never  responded  to  a  summons  of  greater 
moment  for  nobler  task.  The  call  which  comes  to  us  is 
to  the  Nation  whose  people  are  one  and  whose  frontiers 
mark  the  limits  beyond  which  we  dare  not  be  partisans. 
To  this  conference,  so  big  with  fateful  consequences, 
our  Allies  will  send  the  wisest  and  most  astute  of  their 
statesmen.  To  meet  and  counsel  with  them,  to  aid  in 
formulating  lasting  and  righteous  covenants  for  the 
world's  welfare,  are  heavy  and  solemn  responsibilities 
fit  to  be  borne  only  by  the  greatest  and  most  sagacious 
of  our  own.  That  such,  and  only  such,  have  been 
selected  we  shall  all  fervently  hope  until  they  shall  have 
acted,  when  we  shall  know. 


CHAPTER  II 

THE  POWERS  OF  THE  NATIONAL 
GOVERNMENT 

The  form  of  government  under  which  we  live,  wisely 
established  by  our  forefathers,  is  that  of  a  repre- 
sentative, self-limited  democracy,  as  distinguished,  on 
the  one  hand,  from  an  absolute  or  direct  democracy 
and,  on  the  other  hand,  from  an  absolute  monarchy, 
either  of  which  is  an  unsafe  foundation  upon  which  to 
rest  the  political  institutions  of  a  free  people.  The  fault 
of  the  former  is  that  it  constitutes  an  impossible  attempt 
to  carry  on  the  highly  complex  and  multiplex  political 
activities  of  modern  civilization  with  the  crude  methods 
of  primitive  society;  the  vice  of  the  latter  is  that  it 
completely  suppresses  the  will,  if  not  the  wishes  of  the 
governed.  The  dangerous  tendency  of  the  one  is 
toward  anarchy,  for  where  everybody  rules  by  direct 
action,  the  distinction  between  government  and  people 
disappears,  with  the  result,  finally,  that  there  is  no 
government  at  all,  but  only  a  mob,  passing  spasmodic 
and  temporary  resolutions.  The  sure  course  of  the 
other  is  toward  despotism,  for  where  an  autocrat  rules, 
government  ceases  to  be  an  appliance  to  preserve  liberty 
and  becomes  a  weapon  to  destroy  it.  Representative 
government  avoids  both  extremes:  the  first,  by  devolv- 
ing the  actual  operations  of  government  upon  agents 
selected  by  the  people  themselves,  who  thus  have  the 
opportunity  to  appropriate  the  services  of  their  most 


POWERS  OF  NATIONAL  GOVERNMENT  25 

capable  members;  and  the  second,  by  retaining  ultimate 
power  in  the  hands  of  the  people,  and  delegating  to 
these  agents  only  the  duty  of  exercising  such  portions 
of  the  power  as  may,  from  time  to  time,  be  deemed  wise 
and  necessary.  Thus  the  futility  of  an  attempt  on  the 
part  of  the  whole  people  to  operate  the  government — 
an  intricate  task  requiring  singleness  of  purpose  and 
concentration  of  effort — and  the  danger  of  centralizing 
irrevocable  and  absolute  power  in  the  hands  of  a  single 
ruler,  are  alike  avoided. 

Under  such  a  system,  sovereignty  and  government 
are  not  interchangeable  terms  to  express  the  same  thing; 
they  stand  for  distinct  and  separate  things.  Sovereignty 
is  in  the  people  as  a  political  organism  constituting  the 
Nation ;  government  is  an  instrumentality  of  the  Nation 
by  which  the  external  and  internal  functions  of  this 
organism  are  maintained  and  operated.  This  distinc- 
tion is  of  the  utmost  importance,  for  it  lies  at  the  founda- 
tion of  all  our  political  institutions.  The  Nation  is  a 
political  entity  with  plenary  and  unlimited  power,  hold- 
ing in  its  possession  complete  sovereignty;  the  govern- 
ment is  an  agency  exercising  this  power  and  sovereignty 
within  the  limits  of  the  authority  granted  to  it  by  the 
Nation.  This  authority  will  be  narrow  or  broad,  rigid 
or  elastic,  according  to  the  method  adopted  for  inter- 
preting the  grant.  But  whatever  the  method,  whether 
we  confine  the  authority  to  the  strict  words  of  the  grant, 
or  extend  it  by  implication,  or  find  large  powers  in  the 
nature  of  the  grant  itself,  or  in  the  character  of  the 
government  instituted, — in  any  case,  the  Nation  is  the 
final  source  of  every  power,  and  the  government  only 


26      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

an  instrumentality  created  and  constituted  for  the 
purpose  of  exercising  it. 

And  not  only  is  the  Nation  the  source  of  the  powers 
exercised  by  the  general  government,  but  it  is  the  ulti- 
mate and  continuing  source  of  the  powers  exercised  by 
the  state  governments  as  well ;  for  these  powers,  while 
entirely  removed  from  the  control  of  the  national 
government,  may  be  modified,  taken  away  or  redistrib- 
uted by  the  Nation  with  the  single  exception  that  no 
state  shall  be  deprived  of  its  equal  representation  in  the 
Senate,  and  even  this  restriction  upon  the  power  of 
constitutional  amendment  is  self -imposed  by  the  Nation. 

Two  general  classes  of  powers  are  possessed  and 
exercised  under  our  scheme  of  government:  (i)  those 
which  relate  to  our  internal  affairs  and  are  divided  be- 
tween state  and  national  governments;  and  (2)  those 
which  relate  to  our  external  affairs  and  can  be  exercised 
by  the  national  government  alone.  Among  the  latter, 
and  most  important,  are  the  great  powers  of  war  and 
peace,  the  treaty-making  power,  the  power  to  acquire 
and  govern  new  territory,  to  regulate  foreign  commerce, 
and  generally  to  maintain  and  control  our  diplomatic 
and  other  relations  with  foreign  countries. 

Heretofore,  these  powers  have  seemed  remote  and 
have  received  relatively  scant  general  consideration. 
Our  attention  has  been  chiefly  absorbed  by  matters 
exclusively  our  own.  Suddenly,  however,  we  found  our- 
selves in  the  midst  of  a  struggle  involving  the  fate  of 
humanity,  and  the  era  of  national  isolation  was  at  an  end. 
The  powers  of  the  national  government  over  external 
affairs,  all  at  once,  therefore  have  assumed  new  and 
increased  importance,  in  the  light  of  which,  a  re-exam- 


POWERS  OF  NATIONAL  GOVERNMENT  27 

ination  of  their  nature  and  extent  is  not  only  pertinent 
but  may,  sooner  or  later,  become  highly  necessary;  for 
it  is  certain  that  hereafter,  whether  desired  or  desirable, 
we  shall  be  obliged  to  occupy  a  larger  place  in  the  affairs 
of  the  world,  to  participate  to  a  far  greater  degree  in 
world  policies  and  lend  substantial  and  increased  assist- 
ance toward  the  solution  of  world  problems.  By  reason 
of  our  participation  in  the  war  we  have  formed  alliances 
and  assumed  responsibilities  which  we  cannot  wholly  lay 
aside  now  that  the  war  is  ended.  America  and  the 
world  outside  have  been  brought  into  immeasurably 
closer  relations.  Inevitably,  we  shall  be  called  upon  to 
deal,  not  only  with  some  of  the  old  questions  from  a 
different  point  of  view,  but  with  many  new  questions 
which  the  framers  of  the  Constitution  foresaw  dimly, 
or  foresaw  not  at  all. 

In  this  new  and  extended  relationship,  we  shall  prob- 
ably be  obliged  to  extend  the  scope  and  application  of 
the  familiar  meanings  of  the  Constitution,  and  it  may  be 
to  find — though  not  to  make — new  meanings. 

At  the  threshold  of  the  inquiry,  as  already  indicated, 
it  will  be  assumed  as  fundamental  that  the  authority  of 
the  general  government  is  derivative,  not  primary; 
that  all  political  power  originates  with  the  people  and 
ultimately  rests  there.  This,  however,  does  not  carry 
us  very  far,  since  the  question  is  not  what  is  the  source 
of  the  original  power,  but  how  much  of  it  may  be 
exercised.  From  the  beginning  there  has  been  substan- 
tial agreement  as  to  the  correctness  of  the  general 
formula,  but  wide  diversity  of  opinion  as  to  its  applica- 
tion in  practice  and  in  detail.  At  the  one  extreme,  it 
has  been  insisted  that  the  general  government  possesses 


28      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

only  such  powers  as  are  expressly  granted  by  the  Con- 
stitution strictly  construed ;  and,  at  the  other  extreme, 
it  has  been  claimed,  and  still  is  sometimes  claimed,  that 
the  so-called  "general  welfare  clause"  is  a  grant  of  prac- 
tically unlimited  power,  instead  of  being,  where  it  is 
found  in  the  preamble,  simply  a  statement  of  one  of 
the  ends  to  be  accomplished  by  the  exercise  of  the 
conferred  powers;  and  instead  of  being,  where  it  is 
found  in  Article  I,  Section  8,  only  a  limitation  upon  the 
taxing  power.  The  true  limit  lies  somewhere  between 
these  two  extreme  contentions,  but  the  precise  point 
has  never  received  common  recognition.  Between  the 
view  which  would  put  the  national  government  in  a 
straight- jacket  of  strict  construction  and  that  which 
would  set  it  adrift  upon  a  boundless  sea  of  power,  all 
varieties  and  shades  of  opinion  are  to  be  found.  The 
governmental  powers  about  which  we  are  inquiring, 
are  not  embodied  in  a  compact  between  parties  stand- 
ing upon  opposite  sides  of  a  matter,  nor  in  an  ordinary 
act  of  legislation,  but  in  a  Constitution  of  Government. 
The  compact  theory  of  the  Constitution  proceeds  upon 
a  complete  misconception  of  its  true  nature,  for  that 
instrument  does  not  speak  the  language  of  covenant  but 
the  language  of  command.  It  does  not  record  the  under- 
standing but  declares  the  will  of  those  who  made  it.  It 
is  not  agreed  upon  but  ordained  and  established.  It  is 
the  result  of  agreement  among  its  makers,  just  as  a 
statute  is  the  result  of  agreement  among  its  makers, 
but  it  is  not  itself  an  agreement  any  more  than  a  statute 
is  itself  an  agreement.  It  is  not  a  league  or  confedera- 
tion or  compact  among  a  number  of  equal  and  inde- 
pendent states,  but  a  mandate  from  those  who  constitute 


POWERS  OF  NATIONAL  GOVERNMENT  29 

the  sovereign  source  of  all  political  power — state  as  well 
as  national — declaring  their  collective  will  and  creating 
governmental  agencies  to  carry  it  into  effect.  The 
agencies  thus  constituted,  it  must  be  assumed,  were 
designed  by  their  creators  to  be  clothed  with  full  power 
to  accomplish  the  general  objects  for  which  they  were 
brought  into  existence.  To  this  end,  therefore,  the 
Constitution  must  be  broadly  construed,  so  that  the 
design  of  its  makers  may  not  fail  of  execution. 

To  ascertain  the  nature  and  extent  of  the  powers 
conferred  by  this  Constitution,  the  ends  for  which  they 
were  granted  must  be  kept  steadily  in  mind.  Having 
discovered  the  general  purpose  of  the  instrument,  its 
provisions  must  be  construed  with  reference  to  that 
purpose,  and  so  as  to  subserve  it.1 

The  two  classes  of  powers  I  have  described,  not  only 
differ  widely  in  their  nature,  but  the  result  of  denying 
or  curtailing  the  authority  of  the  general  government 
to  exercise  them  in  the  one  case  and  in  the  other,  is 
vastly  different.  The  rules  of  construction,  which  apply 
when  the  government  undertakes  to  deal  with  internal 
matters,  may  not  apply,  in  the  case  of  external  affairs, 
in  the  same  way,  or  to  the  same  degree,  or,  conceivably, 
in  some  cases,  may  not  apply  at  all.  In  ascertaining 
the  meaning  of  language,  not  only  must  the  words  be 
considered,  but  the  objects  to  which  these  words  relate 
must  be  taken  into  account  as  well.  If  you  say,  for 
example,  "I  have  control  over  my  children  and  my  prop- 
erty," you  use  precisely  the  same  words  to  describe  your 
relationship  to  the  two  objects;  but,  nevertheless,  the 
power  which  you  connote  by  these  identical  words  is 

1 12  Wall.  530. 


30     CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

not  the  same.  The  control  in  the  one  case  carries  with 
it  the  power  to  sell  your  property;  it  does  not,  in  the 
other  case,  enable  you  to  sell  your  children,  because  the 
scope  and  extent  of  the  power  is  restricted  by  para- 
mount rules  which  forbid  your  doing  so. 

Again,  for  example:  the  Constitution  grants  to  Con- 
gress the  "power  to  regulate  commerce  with  foreign 
nations  and  among  the  several  states,  etc."  The  words 
which  confer  the  power  to  regulate  foreign  commerce 
are  the  same  words  which  confer  the  power  to  regulate 
interstate  commerce,  but  the  objects  to  which  they 
apply  are  different,  and  hence  the  power,  while  the  same 
in  terms,  may  be,  and,  in  fact,  is,  quite  different  in 
scope  and  extent.  The  general  government  in  dealing 
with  foreign  commerce,  acting  as  the  government  of  a 
Nation  possessing  full  powers  of  sovereignty  and  as  the 
only  government  capable  of  acting  in  that  matter  at 
all,  may  altogether  prohibit  the  exportation  to,  or 
importation  from,  any  foreign  country  of  any  particular 
commodity,  or  of  all  articles  of  commerce  whatsoever. 
The  exercise  of  the  power  to  place  an  embargo  upon 
foreign  commerce  may  be  required  by  considerations 
of  the  most  vital  nature ;  and  it  must  be  assumed  that 
the  general  government  possesses  such  power  under 
well  established  principles  of  international  law.  But 
no  such  degree  of  power  may  be  exercised  over  the  com- 
mercial relations  of  the  several  states  among  themselves, 
since  international  law  has  no  application  to  our  inter- 
nal affairs,  and  since  the  prohibition  of  an  interchange 
of  commodities  among  the  states  would  subvert  the 
plain  design  of  the  commerce  clause  as  applied  to  inter- 
state trade,  namely,  to  secure  commerce  among  the 


POWERS  OF  NATIONAL  GOVERNMENT  31 

states  against  conflicting  and  discriminating  state  regu- 
lations, and  to  insure  a  free  interchange  of  all  legitimate 
commodities  among  the  citizens  thereof. 

While  holding  that  regulation  of  interstate  commerce 
as  to  certain  exceptional  articles,  such  as  lottery  tickets, 
diseased  cattle,  etc.,  may  take  the  form  of  prohibition, 
the  Supreme  Court  of  the  United  States  has  clearly 
recognized  the  distinction  just  made.  In  Groves  v. 
Slaughter,2  after  showing  that  under  the  power  to  regu- 
late foreign  commerce,  Congress  passes  "embargo  and 
non-intercourse  acts,"  the  Court  proceeds: 

"The  power  to  regulate  commerce  among  the  several  states  is 
given  in  the  same  section  and  in  the  same  language.  But  it  does 
not  follow  that  the  power  may  be  exercised  to  the  same  extent.  .  . 

"The  United  States  are  considered  as  a  unit  in  all  regulations 
of  foreign  commerce,  but  this  cannot  be  the  case  where  the  regula- 
tions are  to  operate  among  the  several  states.  The  law  must  be 
equal  and  general  in  its  provisions.  Congress  cannot  pass  a  non- 
intercourse  law,  as  among  the  several  states;  nor  impose  an  embargo 
that  shall  affect  only  a  part  of  them." 

And  Chief  Justice  Fuller  in  The  Lottery  Cases  3  puts 
in  clear  and  forcible  language  the  same  distinction : 

"As  in  effect  before  observed,  the  power  to  regulate  commerce 
with  foreign  nations  and  the  power  to  regulate  interstate  commerce 
are  to  be  taken  diverso  intuitu,  for  the  latter  was  intended  to  secure 
equality  and  freedom  in  commercial  intercourse  as  between  the 
states,  not  to  permit  the  creation  of  impediments  to  such  intercourse- 
while  the  former  clothed  Congress  with  that  power  over  international 
commerce,  pertaining  to  a  sovereign  nation  in  its  intercourse  with 
foreign  nations,  and  subject,  generally  speaking,  to  no  implied  or 
reserved  power  in  the  states.  The  laws  which  would  be  necessary 
and  proper  in  the  one  case  would  not  be  necessary  or  proper  in  the 
other." 

1 15  Peters  449,  505. 
8i88  U.  8.321,  373. 


32      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

It  is  true,  this  language  is  found  in  a  dissenting 
opinion,  but  there  is  nothing  in  the  majority  opinion 
which  conflicts  with  the  general  principle  announced. 

It  is  equally  important  to  bear  in  mind  this  distinc- 
tion in  connection  with  other  powers  exercised  by  the 
general  government  over  foreign,  as  distinguished  from 
domestic  affairs.  The  reasons  which  impelled  the 
framers  of  the  Constitution  to  enumerate  and  limit  the 
powers  of  the  general  government  in  its  dealings  with 
the  several  states  and  with  the  domestic  affairs  of  the 
people,  had  little  or  no  application  to  external  or  inter- 
national affairs.  The  apprehension  of  those  who  favored 
restricting  the  powers  of  the  general  government,  was 
not  so  much  based  on  fear  of  national  power  as  it  was 
on  jealousy  for  state  power.  Though  both  sentiments 
found  expression,  that  which  looked  to  the  preservation 
of  the  local  state  authority  over  internal  affairs  was  the 
one  which  was  prominently  manifested.  Neither  in 
the  Framers'  Convention  nor  in  any  of  the  ratifying 
conventions  was  there  apparent  any  opposition  to  the 
plan  of  conferring  upon  the  general  government  ade- 
quate and  complete  power  over  external  affairs.  It 
seemed  to  be  generally  recognized  that  such  power  could 
appropriately  be  exercised  only  by  that  government,  and 
that  the  states  were  incompetent  to  exercise  it  except 
in  combination.  In  the  distribution  of  powers,  there- 
fore, the  general  government  was  not  only  made  the 
depository  of  all  authority  over  external  matters,  but 
express  prohibitions  against  the  exercise  of  any  such 
authority  by  the  several  states  were  inserted  in  the 
Constitution  as  well.  It  is  certain,  therefore,  that  if 
power  to  deal  with  any  specific  external  question  be 


POWERS  OF  NATIONAL  GOVERNMENT  33 

denied  the  general  government,  the  authority  will  not 
devolve  upon  the  state  governments,  or  any  of  them,  as 
having  been  reserved  by  the  Tenth  Amendment,  since 
these  governments  have  not  only  been  rendered  incom- 
petent by  the  prohibitions  of  the  Constitution,  but,  also, 
because  it  is  inherently  impossible  for  the  several  states, 
acting  separately,  to  deal  with  matters  which  concern 
them  only  in  their  combined  capacity  as  united  states. 
The  effect  of  denying  power  to  the  general  government 
over  any  domestic  matter  is,  therefore,  wholly  different 
from  the  effect  of  a  similar  denial  in  the  case  of  external 
matters.  Generally  speaking,  to  the  extent  that  author- 
ity in  the  former  case  is  denied  to  the  general  govern- 
ment, it  is  affirmed  to  the  state  governments;  but  to 
the  extent  such  authority  in  the  latter  case  is  denied  to 
the  general  government,  its  exercise  is  precluded  alto- 
gether; and  if  the  power  denied  be  a  necessary  or  useful 
one,  the  effect  is  not  to  enrich  the  state,  but  only  to  im- 
poverish the  Nation.  In  view  of  these  considerations, 
every  intendment  should  be  indulged  in  favor  of  a 
claim,  on  the  part  of  the  general  government,  to  the 
possession  of  complete  power — at  least,  so  far  as  useful 
or  necessary — over  external  matters.  In  all  our  inter- 
course with  foreign  governments,  and  in  all  our  dealings 
with  external  affairs,  it  must  be  borne  in  mind  that  we 
are  dealing  as  "a  national  government,  and  the  only 
government  in  this  country  which  has  the  character  of 
nationality,"  4  and  with  matters  that  have  been  com- 
pletely withdrawn  from  the  state  governments.  Within 
our  own  borders,  in  our  relations  among  ourselves  we 
have  many  governments  exercising  carefully  distributed 

« 12  Wall.  457,  555- 


34      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

powers ;  in  our  relations  with  the  outside  world  we  have 
one  government  exercising  undivided  power.  "Toward 
foreign  powers  the  country  has  no  seam  in  its  garment ; 
it  exists  in  absolute  unity  as  a  nation  and  with  full  and 
undisputed  national  resources."  5  "For  local  interests 
the  several  states  of  the  Union  exist,  but  for  inter- 
national purposes,  embracing  our  relations  with  foreign 
nations,  we  are  but  one  people,  one  nation,  one  power."  6 
By  the  Tenth  Amendment  it  is  provided:  "The 
powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  states,  are 
reserved  to  the  states  respectively,  or  to  the  people." 
The  effect  of  this  is  to  recognize  that  every  political 
power  originally  possessed  by  the  people  of  the  United 
States  is  disposed  of  in  one  of  three  ways:  (i)  it  is 
vested  in  the  national  government;  (2)  it  is  reserved 
to  the  states,  or  (3)  it  is  still  held,  as  undistributed,  by 
the  people.  In  thus  parceling  out  the  totality  of  politi- 
cal power,  it  must  be  assumed  that  the  intention  was 
to  vest  in  one  government  or  the  other,  every  power, 
the  exercise  of  which  would  contribute  to  the  usefulness 
of  government  as  an  agency  to  promote  the  public  good, 
and  to  withhold  only  such  as,  for  sound  reasons  of  pub- 
lic policy,  ought  not  to  be  vested  in  any  government. 
To  assume  less  than  this,  is  to  indulge  the  absurd  sup- 
position that  state  and  national  governments  were 
instituted  for  the  purpose  of  achieving  certain  great 
ends,  but  that  the  necessity  of  conferring  adequate 
power  of  attainment  was  entirely  disregarded.  The 
state  governments,  as  already  stated,  are  confined  in 

6  Bancroft,  History  of  the  Constitution,  331. 
6 130  U.  S.  606. 


POWERS  OF  NATIONAL  GOVERNMENT  35 

their  operations  to  their  own  boundaries,  and  from  the 
nature  and  structure  of  our  governmental  system,  as 
well  as  by  the  prohibitions  of  the  Constitution,  they 
can  exercise  no  power  externally.  It  follows,  then,  that 
the  reservation  to  the  respective  states  can  have  no 
reference  to  any  power  to  be  exerted  externally,  but 
refers  to  internal  power  exclusively,  and  that  every 
power  ov*er  external  affairs,  not  vested  in  the  general 
government,  is  held  in  reserve  by  the  people,  and,  there- 
fore, incapable  of  practical  exercise. 

The  rule  of  construction  applicable  to  state  constitu- 
tions is  that  the  state  government  may  exercise  every 
power  appropriate  to  governmental  administration  un- 
less prohibited;  and  that  the  legislature,  being  regarded 
as  the  primary  depository  of  such  power,  is  to  exercise 
it,  unless  by  the  Constitution  devolved  upon  or  from 
its  very  nature  obviously  appertaining  to  some  other 
department  of  the  government.  As  to  all  domestic 
matters,  except  such  as  are  prohibited,  there  is,  there- 
fore, a  complete  distribution  of  power:  first,  to  the 
general  government  over  subjects  enumerated,  and, 
second,  to  the  respective  state  governments  over  all 
unenumerated  subjects.  Nothing  in  this  field  essential 
to  government,  is  left  unprovided  for  by  mischance  or 
oversight;  the  distribution  of  power  is  complete;  every 
conceivable  contingency  may  be  dealt  with  by  one 
governmental  agency,  or  the  other,  unless  authority 
to  do  so  has  been  deliberately  withheld. 

In  external  affairs,  however,  there  is  no  residuary 
agency ;  the  sole  agency  capable  of  acting  is  the  national 
government.  Is  it  not  reasonable  to  assume  that  those 
who  were  so  careful  to  avoid  any  lapse  or  loss  of  active 


36      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

power  in  the  case  of  internal  matters,  were  equally 
solicitous  in  the  case  of  external  affairs?  If  this  be 
answered  affirmatively,  as  it  must  be,  did  their  expres- 
sion fall  short  of  their  meaning?  To  put  the  extreme 
case :  If  the  framers  of  the  Constitution  have  omitted  to 
specify  affirmatively  some  highly  useful  and  important 
external  power,  is  it  therefore  to  be  withheld  by  virtue  of 
the  doctrine  which  limits  the  general  government  to  the 
powers  expressly  granted,  and  such  as  are  auxiliary  there- 
to? Or,  on  the  other  hand,  does  the  fact  that  they  were 
dealing  with  a  class  of  powers,  sufficiently  numerous  to  be 
difficult  of  exhaustive  enumeration,  but  which,  whether 
enumerated  or  not,  might,  at  any  time,  require  exercise, 
and  perhaps  very  prompt  exercise,  and  as  to  which  there 
was  no  residuary  governmental  agency  to  whom,  upon 
a  sort  of  suum  cuigue  principle,  any  power  omitted 
would  automatically  fall,  justify  the  application  of  the 
rule  which  governs  the  construction  of  state  constitu- 
tions, namely,  that  the  government  may  exercise  all 
such  powers  unless  prohibited?  In  other  words,  does 
anything  result  to  the  general  government  from  the 
fact  that  in  this  exclusive  field  of  external  sovereignty 
powers  are  not  distributed  but  are  assembled?  A  brief 
reference  to  some  of  the  incidents  preceding  and  accom- 
panying the  framing  and  adoption  of  the  Constitution, 
may  assist  us  in  determining  the  proper  answer  to  these 
interrogatories.  Prior  to  the  Revolution  the  colonies 
were  independent  of  each  other,  but  all  owed  common 
allegiance  to  Great  Britain.  They  possessed  certain 
powers  of  internal  government,  but  they  had  no  power 
whatever  to  act  in  any  external  matter.  Their  first 
step  looking  to  a  redress  of  grievances  was  taken  not 


POWERS  OF  NATIONAL  GOVERNMENT  37 

separately  but  unitedly.  It  consisted  of  bringing  to- 
gether and  causing  to  be  organized  the  Continental 
Congress,  composed,  finally,  of  delegates  from  each  of 
the  thirteen  colonies. 

As  stated  by  the  Supreme  Court  in  Penhallow  v. 
Doane,7  this  Congress  was  purely  a  revolutionary  body 
and  possessed  the  supreme  and  sovereign  powers  of  war 
and  peace,  adequate  to  every  national  emergency. 
These  powers  were  limited  only  by  the  objects  of  the 
Revolution,  and  to  determine  what  they  were,  we  have 
only  to  ascertain  what  were  in  fact  exercised.8  The 
second  Congress,  among  other  things,  raised  an  army, 
provided  a  currency,  created  a  navy,  organized  a  trea- 
sury and  post-office,  and  finally  adopted  the  Declaration 
of  Independence.  Nationality  was  inherent  from  the 
beginning.  The  sovereign  Nation  and  the  independent 
states,  conceived  at  the  same  time,  were  born  together. 
By  the  Declaration  of  Independence  the  colonies  did 
not  sever  their  connection  with  Great  Britain  as  separate 
colonies  but  as  the  United  States  of  America,  and  they 
declared  not  the  several  but  the  united  colonies  to  be 
free  and  independent  states — not  Massachusetts,  not 
New  York,  not  Virginia,  separately,  but  all  combined 
and  united.  Together,  and  not  separately,  they  waged 
the  war;  together  they  made  peace;  and  together  they 
entered  the  family  of  nations  not  as  thirteen  distinct 
sovereignties  but  as  one  sovereign  Nation.  The  several 
states  never  exercised  the  powers  of  external  sover- 
eignty; they  were  never  recognized  by  any  foreign 
government;  they  never  possessed  the  attributes  of 

7  3rd  Ball.  54,  80. 

8  Ibid. 


38      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

nationality.  When  the  treaty  of  peace  was  made  with 
Great  Britain  and  the  Declaration  of  Independence 
became  a.fact,  it  is  impossible  to  escape  the  conclusion 
that  all  powers  of  external  sovereignty  finally  passed 
from  the  Kingdom  of  Great  Britain  to  the  people  of 
the  thirteen  colonies  as  one  political  unit,  and  not  to 
the  people  separately  as  thirteen  political  units.  This 
great  historical  fact,  which  stands  out  so  clearly  now, 
was  not  then  universally  recognized  or  conceded.  State 
jealousy  was  a  very  strong  and  disturbing  factor.  It 
was  a  time  of  doubt  and  confusion,  of  distrust  and  sus- 
picion, and  the  passionate  desire  of  the  people  for  state 
autonomy  prevented  a  full  realization  of  their  status  as 
a  nation.  But  even  under  the  Confederation  there  were 
those,  not  blinded  by  the  prejudice  of  locality,  who  saw 
clearly  the  essential  fact.  One  such  was  James  Wilson, 
a  signer  of  the  Declaration  of  Independence,  afterwards 
to  become  one  of  the  framers  of  the  Constitution  and  a 
Justice  of  the  Supreme  Court  of  the  United  States. 
Writing  upon  the  question  of  the  challenged  power  of 
the  Congress  of  the  Confederation  to  incorporate  the 
Bank  of  North  America,  he  said : 

"The  United  States  have  general  rights,  general  powers,  and 
general  obligations,  not  derived  from  any  particular  states,  nor  from 
all  the  particular  states,  taken  separately;  but  resulting  from  the 
union  of  the  whole.  .  . 

"To  many  purposes  the  United  States  are  to  be  considered  as  one 
undivided,  independent  nation,  and  as  possessed  of  all  the  rights 
and  powers  and  properties  by  the  law  of  nations  incident  to  such. 

"Whenever  an  object  occurs  to  the  direction  of  which  no  par- 
ticular state  is  competent,  the  management  of  it  must  of  necessity 
belong  to  the  United  States  in  Congress  assembled.  There  are  many 
objects  of  this  extended  nature.  .  '. 


POWERS  OF  NATIONAL  GOVERNMENT  39 

"The  act  of  independence  was  made  before  the  Articles  of  Con- 
federation. This  act  declares  that  'these  United  Colonies'  (not 
enumerating  them  separately)  'are  free  and  independent  states; 
and  that  as  free  and  independent  states  they  have  full  power  to  do 
all  acts  and  things  which  independent  states  may  of  right  do'. 

"The  confederation  was  not  intended  to  weaken  or  abridge  the 
powers  and  rights  to  which  the  United  States  were  previously  en- 
titled. It  was  not  intended  to  transfer  any  of  those  powers  or  rights 
to  the  particular  states,  or  any  of  them.  If,  therefore,  the  power 
now  in  question  was  vested  in  the  United  States  before  the  con- 
federation, it  continues  vested  in  them  still.  The  confederation 
clothed  the  United  States  with  many,  though  perhaps  not  with 
sufficient  powers;  but  of  none  did  it  disrobe  them." 

Upon  the  theory  that  sovereignty  over  the  country 
embraced  by  the  colonies  passed  from  the  Crown  to  the 
whole  people  as  a  political  unit,  it  was  not  an  uncom- 
mon opinion  among  the  colonists  that  the  unappro- 
priated crown  lands  vested  not  in  the  people  of  the 
colonies  or  states  in  which  these  lands  were  respectively 
situated,  but  in  the  whole  people.9 

At  any  rate,  in  recognition  of  some  such  doctrine,  the 
unoccupied  territory  belonging  to  some  of  the  colonies 
was  ceded  to  the  United  States.  This,  it  should  be 
observed,  except  in  the  case  of  Georgia  and  North 
Carolina,  was  under  the  Articles  of  Confederation. 
Nowhere  in  the  Articles  of  Confederation  was  the  power 
to  acquire  or  govern  territory  specifically  given  to  the 
United  States,  nor  could  it  be  inferred  from  any  power 
which  was  given.  This  territory,  then,  it  would  seem, 
could  only  be  acquired  and  governed  upon  the  theory 
that  such  power  resulted  from  the  sum  of  the  powers 
granted,  or  from  the  fact  of  nationality.  Whatever 

9  Chisholm  v.  Georgia,  2  Dall.  470. 


40     CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

may  be  the  conclusion  otherwise,  it  seems  clear  that 
external  sovereignty  never  was  possessed — certainly  it 
never  was  exercised — by  the  states  severally.  The  use 
of  the  term  "states"  to  describe  the  constituent  members 
of  the  Union  is  itself  confusing,  since  it  carries  an  im- 
plication of  sovereignty  not  justified  by  analysis.  A 
"state"  in  the  international  sense  means  an  international 
sovereignty  possessing,  as  essential  attributes,  equality 
in  the  family  of  nations  and  full  power  to  contract  with 
other  sovereignties.  A  state  in  the  American  Union 
possesses  neither.  Its  equality  is  with  reference  to  sister 
states,  not  with  reference  to  international  states;  and 
it  has  no  power  to  contract  even  with  a  sister  state 
without  obtaining  the  consent  of  Congress.  Each  state 
of  the  Union  is  independent  of  every  other  state  and 
exercises  supreme  powers,  but  its  will  is  not  supreme 
since  it  is  subject  to  the  paramount  will  of  the  Nation, 
which,  by  a  vote  of  three-fourths  of  its  members,  may 
strip  the  state  of  any  of  its  powers,  and  vest  them  in 
the  general  government. 

In  one  of  the  most  notable  utterances  of  the  Framers' 
Convention  that  has  been  preserved,  Rufus  King  in- 
sisted that  the  states  were  not  sovereign — at  least  not 
in  any  complete  sense:  "They  did  not  possess  the 
peculiar  features  of  sovereignty,  they  could  not  make 
war,  nor  peace,  nor  alliances,  nor  treaties.  Consider- 
ing them  as  political  beings,  they  were  dumb,  for  they 
could  not  speak  to  any  foreign  sovereignty  whatever; 
they  were  deaf,  for  they  could  not  hear  any  proposition 
from  any  such  sovereignty;  they  had  not  even  the 
organs  or  faculties  of  defense  or  offense,  for  they  could 
not  of  themselves  raise  troops,  or  equip  vessels  for  war." 


POWERS  OF  NATIONAL  GOVERNMENT  41 

And  he  contended  that  a  union  of  the  states  was  a 
union  of  the  men  who  composed  them  from  whence  a 
national  character  resulted  to  the  whole.10 

The  debates  in,  and  proceedings  of,  the  Framers'  Con- 
vention, in  so  far  as  they  were  preserved  and  published, 
clearly  evince  that  it  was  the  intention  of  the  makers  of 
the  Constitution  to  vest  in  the  national  government 
complete  authority  over  external  affairs.  The  sixth 
paragraph  of  the  Virginia  plan  declared  that  the 
national  legislature  "ought  to  be  empowered  to  enjoy 
the  legislative  rights  vested  in  Congress  by  the  Con- 
federation, and  moreover  to  legislate  in  all  cases  to  which 
the  separate  states  are  incompetent,  etc."  n  This  para- 
graph was  adopted  and  reported  to  the  Committee  of 
the  Whole.  In  the  Convention  it  was  debated,  and 
finally  amended  so  as  to  read  "and  moreover  to  legislate 
in  all  cases  for  the  general  interest  of  the  Union,  and 
also  in  those  to  which  the  states  are  separately  incom- 
petent"; and  in  this  form,  it  was  referred  to  the  Com- 
mittee of  Detail  for  the  purpose  of  reporting  a  constitu- 
tion. This  Committee  had  no  power  except  to  carry  out 
the  will  of  the  Convention,  and,  as  it  does  not  appear  that 
there  was  any  change  of  opinion,  it  may  be  fairly  as- 
sumed that  the  Committee  and  the  members  of  the 
Convention  meant  that  the  Constitution  should  conform 
with  the  resolution,  and  that  in  their  judgment  it  did  so. 
In  this  connection,  let  us  turn  for  a  moment  to  the 
preamble.  It  declares  that  the  objects  of  the  Constitu- 
tion are  "to  form  a  more  perfect  union,  establish  justice, 
insure  domestic  tranquillity,  provide  for  the  common 

10  Madison  Papers,  5  Elliott's  Debates,  212-213. 

11  Madison  Papers,  5  Elliott,  127. 


42      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

defense,  promote  the  general  welfare  and  secure  the 
blessings  of  liberty  to  ourselves  and  our  posterity."  This 
is  not  an  enumeration  of  substantive  powers,  but  is  an 
enumeration  of  the  great  and  comprehensive  ends,  for 
the  accomplishment  of  which  the  Constitution  was 
ordained  and  established.  The  substantive  powers  con- 
ferred upon  the  national  government,  as  well  as  those 
reserved  to  the  states,  are  the  means  to  these  ends ;  but 
it  is  the  ends  which  are  essential;  the  means  are  only 
important  in  so  far  as  they  contribute  to  the  ends. 
Hence  the  wisdom  of  the  rule  already  referred  to,  that 
the  Constitution  must  be  construed  with  reference  to 
these  ends  and  so  as  to  subserve  them.  So  far  as  they 
may  be  subserved  by  the  regulation  or  control  of  domes- 
tic affairs,  the  state  governments  may  generally  act  in 
those  cases  where  the  general  government  is  not 
empowered  to  act;  but  whenever  the  regulation  or 
control  of  external  affairs  is  necessary,  the  ends  must 
be  realized  by  the  activities  of  the  national  govern- 
ment, or,  practically  speaking,  not  at  all,  for  he  who 
drives  must  be  given  the  lines;  and  a  power  reserved 
to  a  hundred  million  drivers  is  in  effect  a  power  which 
does  not  exist,  since  it  cannot  be  translated  into  action 
until  transferred  to  the  government  by  the  long, 
tedious  and  almost  impossible  process  of  Constitutional 
amendment. 

We  are  now  ready,  I  think,  for  the  conclusion  which 
these  premises  justify.  The  men  who  made  the  Con- 
stitution were  deeply  learned  in  the  science  of  govern- 
ment. They  intended  to  confer  complete  and  adequate 
power  over  domestic  affairs  to  the  extent  that  govern- 
mental action  was  appropriate  and  necessary  or  useful. 


POWERS  OF  NATIONAL  GOVERNMENT  43 

They  did  not  intend  to  provide  less  completely  in  the 
case  of  external  affairs.  In  all  matters  of  internal 
sovereignty,  when  the  Constitution  was  framed,  the 
original  reservoir  of  power  was  in  the  states;  portions 
therefrom  were  delegated  to  the  national  government; 
the  residue  was  retained  by  the  states.  It  is  to  this 
class  of  powers  that  the  language  of  the  Supreme  Court 
in  Ex  Parte  Virginia,12  appropriately  applies:  "Every 
addition  of  power  to  the  general  government  involves 
a  corresponding  diminution  of  the  governmental  powers 
of  the  states.  It  is  carved  out  of  them"  And  it  must 
have  been  only  this  class  of  powers  which  Chief  Justice 
Waite  had  in  mind  when,  in  delivering  the  opinion  of 
the  Court  in  Munn  v.  Illinois,13  he  said: 

'When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their 
government.  They  retained  for  the  purposes  of  government  all 
the  powers  of  the  British  Parliament  and,  through  their  State  Con- 
stitutions, or  other  forms  of  social  compact,  undertook  to  give  prac- 
tical effect  to  such  as  they  deemed  necessary  for  the  common  good 
and  the  security  of  life  and  property.  All  the  powers  which  they 
retained  they  committed  to  their  respective  states,  unless  in  express 
terms  or  by  implication  reserved  to  themselves.  Subsequently, 
when  it  was  found  necessary  to  establish  a  National  government  for 
national  purposes,  a  part  of  the  powers  of  the  states  and  of  the  people 
of  the  states  was  granted  to  the  United  States  and  the  people  of  the 
United  States.  This  grant  operated  as  a  further  limitation  upon  the 
powers  of  the  states,  so  that  now  the  governments  of  the  states 
possess  all  the  powers  of  the  Parliament  of  England,  except  such  as 
have  been  delegated  to  the  United  States  or  reserved  by  the  people. 
The  reservations  by  the  people  are  shown  in  the  prohibitions  of  the 
constitutions." 

«  too  U.  S.  339. 
"94  U.S.  113. 


44      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

With  reference  to  the  powers  of  internal  sovereignty, 
therefore,  it  is  quite  logical  to  conclude  that  the  author- 
ity of  the  national  government  should  be  limited  to  the 
grants  of  the  Constitution,  leaving  the  residue  to  the 
states,  to  be  exercised  by  their  respective  governments, 
except  as  limited  by  the  prohibitions  of  the  state  or 
National  constitutions.  Since  these  powers,  so  far  as 
they  are  vested  in  the  general  government,  have  been 
"carved  out  of"  the  mass  of  state  governmental  powers, 
it  would  seem  to  follow,  indubitably,  that  those  not 
appearing  by  express  words  or  natural  implication  to 
have  been  severed  from  the  mass  still  remain  in  their 
original  place.  Not  so,  however,  with  respect  to  the 
powers  of  external  sovereignty.  These  were  never 
possessed  by  the  states,  or  the  people  of  the  states 
separately,  and,  hence,  could  not  have  been  delegated, 
since  the  states  or  the  people  of  the  states  could  not 
delegate  something  they  did  not  have.  These  powers 
passed  directly  to  the  Nation  as  the  result  of  successful 
revolution.  They  were  never  exercised,  they  were 
never  possessed,  by  any  government  except  the  govern- 
ment which,  for  the  time  being,  represented  the  Nation. 
When  the  Constitution  was  framed,  therefore,  the  un- 
divided powers  of  external  sovereignty  were  in  the 
Union,  which  antedated  the  Constitution  and  was  made 
"more  perfect"  by  it.  Hence,  the  disposition  of  these 
powers  did  not  involve  taking  something  from  the 
mass  of  state  power — did  not  involve  an  apportionment 
between  the  states  and  the  Nation — for  they  already 
belonged  to  the  Nation,  and  the  only  question  to  be 
determined  was,  What  shall  be  given  to  the  general 


POWERS  OF  NATIONAL  GOVERNMENT  45 

government,  and  made  active,  and  what  shall  be 
reserved  to  the  people,  and  lie  dormant? 

This  brings  us  to  the  point  where  it  would  seem  to  be 
clear  that,  with  respect  to  the  powers  of  external  sov- 
ereignty, the  general  government  occupies  a  relation 
to  the  national  Constitution  not  unlike  that  which  the 
state  governments  occupy  toward  their  respective  con- 
stitutions, namely,  that  of  sole  governmental  adminis- 
trator; and,  inasmuch  as  the  powers  of  government 
must  be  commensurate  with  the  ends  for  which  the 
government  was  instituted  in  order  to  insure  attain- 
ment, a  presumption  arises  that  every  necessary  power 
is  conferred  unless  prohibited. 

The  question  may  be  viewed  from  a  slightly  different 
angle.  The  framers  of  the  Constitution  were  familiar 
with  the  principles  governing  the  intercourse  of  nations. 
They  knew  that  the  provisions  of  the  Constitution  could 
have  no  extra-territorial  force,  but  that  the  extra-terri- 
torial operations  of  the  United  States  must  be  governed 
by  the  law  of  nations.  They  knew  that  under  this  law, 
all  nations,  however  constituted,  were  co-equal,  and 
that  the  highest  duty  of  every  nation  was  that  of  self- 
preservation. 

As  early  as  1758,  Vattel  had  written:  "Whatever  is 
lawful  for  one  nation  is  lawful  for  another;  and  what- 
ever is  unjustifiable  in  the  one  is  equally  so  in  the  other." 
With  this  understanding,  the  United  States  was  intro- 
duced into  the  family  of  nations,  to  be  governed  by  the 
law  of  nations,  equal  in  power  and  in  right  to  every  other 
nation,  and  possessing,  as  its  highest  right  and  most 
imperious  duty,  the  right  and  duty  of  self-preservation. 
And  with  this  understanding,  the  government  was 


46      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

created  and  constituted  as  the  sole  agency  of  the  Nation 
in  all  its  external  relations,  charged  with  the  responsi- 
bility of  preserving  it  and  of  maintaining  its  equality. 
For  the  accomplishment  of  these  ends,  it  must  be  as- 
sumed, as  a  necessary  and  self-evident  postulate,  that 
no  legitimate  power  would  be  intentionally  withheld. 
It  is  axiomatic  that  a  general  agent  has  power  to  do 
anything,  not  specifically  excepted,  which  falls  within 
the  scope  of  his  general  authority.  The  principle  is  not 
without  application  to  the  national  government  when 
dealing  with  external  affairs,  where  it  is  not  only  a  gen- 
eral agent  but  an  exclusive  agent. 

As  a  conclusion  from  all  that  has  been  said,  the  rule 
of  construction  may  well  be  formulated  thus:  Where  the 
powers  claimed  for  the  general  government  are  to  be 
subtracted  from  the  mass  of  original  state  powers,  that 
is,  where  they  relate  to  domestic  and  internal  affairs, 
the  claim  must  be  justified  by  the  express  grants  of  the 
Constitution,  or  by  the  implications  arising  therefrom; 
but  where  the  powers  claimed  are  among  those  originally 
acquired  and  always  exclusively  held  by  the  Nation, 
that  is,  where  they  relate  to  external  affairs,  the  claim 
is  justified  unless  the  powers  are  prohibited  by  the 
Constitution,  or  unless  contrary  to  the  fundamental 
principles  upon  which  it  was  established.  In  that  view 
of  the  question  "the  reservations  by  the  people  are  shown 
in  the  prohibitions  of  the  Constitution,"  and  in  the  re- 
strictive implications  involved  in  these  fundamental 
principles. 

What  is  the  basis  of  the  rule  of  construction  applicable 
to  a  state  constitution,  by  which  the  government  con- 
stituted by  it  is  limited  not  to  the  things  granted  but  by 


POWERS  OF  NATIONAL  GOVERNMENT  47 

the  things  prohibited?  I  do  not  remember  to  have  ever 
seen  it  stated,  but  obviously  it  must  be  this:  that  the 
exigencies  of  governmental  administration,  because  of 
their  great  variety  and  constant  augmentation,  cannot 
be  foreseen  and  consequently  cannot  be  enumerated; 
and  it  is  better  to  risk  an  occasional  abuse  of  power 
(which  is,  after  all,  under  our  system  of  representative 
responsibility,  very  slight)  than  it  is  to  incur  the  incon- 
veniences and  dangers  arising  from  lack  of  effective 
power.  In  all  matters  of  external  sovereignty  these 
reasons  apply  with  equal  force  to  the  general  gov- 
ernment. 

The  result  does  not  flow  from  a  claim  of  inherent 
power,  but  from  the  application  of  a  legitimate  and 
logical  rule  of  construction.  The  sovereign  will  of  the 
Nation  is  embodied  in  the  Constitution  and  its  exercise 
by  the  government  is  measured  thereby;  but  in  the  one 
case  it  is  manifested  by  what  that  instrument  affirms 
and  in  the  other  case  by  what  it  fails  to  negative.  Thus, 
for  example,  the  power  to  make  such  international  agree- 
ments as  do  not  constitute  treaties  in  the  constitutional 
sense,  the  power  to  acquire  territory  by  discovery  and 
occupation,  the  power  to  expel  undesirable  aliens,  none 
of  which  are  affirmed,  nevertheless  exist  under  and  by 
warrant  of  the  Constitution  so  construed. 


CHAPTER  III 

THE  EXTERNAL  POWERS— EXTENT 
AND  LIMITATIONS 

It  is  time  we  realized  not  in  phrases  merely  but  in 
fact,  that  the  Constitution  is  not  a  petrification,  nor  the 
charter  of  a  petrification.  This  is  a  progressive  Nation 
in  a  progressive  world.  As  the  Nation  goes  forward  the 
government,  which  has  been  organized  to  put  the  will  of 
the  Nation  into  operation,  must  go  forward  with  it  and 
in  aid  of  it;  but  if  the  activities  of  the  government  are 
too  strictly  limited,  a  drag  upon,  instead  of  an  aid  to  this 
forward  progress  will  result.  This  does  not  mean  that 
the  powers  of  the  government  are  not  fixed,  but  it  does 
mean  that  they  are  not  fixed  within  any  narrow  or  rigid 
bounds.  It  has  been  frequently  said  that  the  meaning 
of  the  Constitution  does  not  change,  and  this  is  true; 
but  the  things  which  fall  within  the  scope  of  the  Consti- 
tution constantly  change.  As  these  changes  come — very 
profound  in  their  character  sometimes — the  old  powers 
are  sufficiently  comprehensive  to  embrace  them.  It  is 
not  necessary  to  create  new  powers  to  meet  the  altered 
conditions  any  more  than  it  is  necessary  to  coin  new 
words  to  describe  them;  the  old  powers  and  the  old 
words  possess  an  inherent  elasticity  which  gives  them 
an  indefinite  capacity  for  new  extensions  and  applica- 
tions. The  Nation  is  not  an  ingeniously  constructed 
mechanism  made  to  go,  as  a  clock  goes,  without  inward 
capacity;  it  is  an  organism  having  inherent  power  to 


EXTERNAL  POWERS  49 

be  and  to  grow  in  response  to  the  indwelling  forces  which 
make  it  an  organism.  As  it  grows,  the  Constitution 
which  clothes  its  government  with  power  must  grow 
also  lest  it  be  left  naked  and  defenseless  at  some  vulner- 
able point.  The  Constitution  was  not  made  alone  for 
those  who  framed  it  and  adopted  it.  It  was  made  for 
us  who  followed  them,  and  for  those  who  will  follow  us 
in  the  centuries  yet  to  come.  As  it  served  for  the  small 
affairs  of  the  fathers  it  serves  for  the  large  affairs  of 
their  sons,  and  will  serve  for  the  vast  affairs  of  unborn 
generations ;  not  because  its  meaning  changes  but  be- 
cause its  capacity  for  adaptation  is  indefinitely  flexible. 
The  progress  of  every  sort — social,  political,  financial, 
mechanical  and  economic — which  has  been  made  since 
the  Constitution  was  written  has  been  so  vast  in  extent 
and  so  revolutionary  in  character,  that  an  entirely  new 
world  has  resulted.  However  little  the  specific  changes 
were  foreseen,  this  new  world  was  within  the  contempla- 
tion of  those  who  adopted  the  Constitution,  and  that 
instrument  applies  if  the  new  conditions  fall  within  its 
scope,  not  for  the  reason  that  those  who  framed  and 
those  who  adopted  the  Constitution  intended  it  to  apply 
to  these  specific  conditions — for  they  could  not  have 
intended  something  of  which  they  were  completely 
ignorant — but  because,  at  least,  there  is  nothing  in  their 
words  to  justify  the  assumption  that  if  the  specific  con- 
ditions had  been  foreseen  they  would  have  been  in  terms 
excepted  from  the  operations  of  the  general  govern- 
ment. When,  for  example,  provision  was  made  for  con- 
gressional regulation  of  commerce  the  thing  chiefly  in 
mind  was  transportation  by  water.  Land  transporta- 
tion was  limited  and  primitive,  and  governmental  regu- 


50      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

lation,  either  infra-state  or  inter-state,  was  exceedingly 
simple.  The  application  of  steam;  the  weaving  to- 
gether of  the  states  by  a  network  of  steel  highways, 
upon  which  moves  a  commerce  vastly  greater  than  all 
the  commerce  of  the  world  in  1787;  the  invention  of 
the  telegraph,  the  telephone,  wireless  telegraphy;  the 
advent  and  development  of  aerial  navigation — all  these 
were  beyond  the  thoughts  of  the  fathers  in  their  most 
exalted  visions ;  but  the  commerce  clause  includes  them 
as  completely  as  it  originally  included  the  stage  coach, 
and  as  it  will  include  all  future  means  of  commercial 
intercourse  and  transportation,  however  strange  to  the 
experience  of  that  older  day  and  of  this  newer  day  they 
may  be.  Without  this  capacity  for  indefinite  extension 
the  written  Constitution  long  since  would  have  become 
a  tradition,  and  the  Union  itself,  perhaps,  have  fallen 
apart  from  its  own  weakness.  Fortunately,  the  doctrine 
of  strict  construction  which  denied  this  capacity  did  not 
prevail,  but  was  decisively  overthrown  in  limine,  since 
when  the  rule  has  undergone  a  process  of  gradual  but 
continual  and  certain  liberalization. 

The  earlier  decisions  of  the  Supreme  Court  laid  down 
the  doctrine  of  the  implied  powers,  namely,  that  Con- 
gress was  not  only  vested  with  the  expressly  enumerated 
powers  of  the  Constitution  but  also  possessed  implied 
power  to  enact  any  legislation  necessary  and  proper  to 
carry  into  effect  all  powers  vested  by  the  Constitution, 
and  that,  in  exercising  this  implied  power,  Congress 
possessed  a  range  of  choice  so  wide  as  to  be  practically 
unlimited. 

But  as  the  Nation  grew  and  novel  conditions  devel- 
oped, governmental  problems  arose  which  could  not  be 


EXTERNAL  POWERS  51 

solved  by  reference  to  any  of  the  granted  powers  or  by 
recourse  to  the  implications  arising  therefrom,  and  legis- 
lation was  enacted  and  upheld  by  the  Court  if  the 
authority  could  be  deduced  from  any  grouping  of  the 
express  powers,  or  from  the  sum  of  them  all.  The 
process  did  not  end  here.  From  time  to  time  Congress 
enacted  legislation  which  could  not  be  justified  under 
any  express  power,  or  any  combination  of  the  express 
powers,  or  under  all  of  them  combined,  nor  by  virtue  of 
any  reasonable  implication  capable  of  being  drawn 
therefrom.  Some  of  these  acts  were  of  a  purely  adminis- 
trative character,  and  have  never  given  rise  to  a  case  or 
proceeding,  so  that  the  judicial  power  might  be  invoked ; 
but  others  presenting  justiceable  questions  have  been 
considered  by  the  Supreme  Court  and  their  validity  sus- 
tained. It  is  not  easy  to  reconcile  the  conclusions 
arrived  at  in  some  of  these  decisions  with  the  sweeping 
general  statements  which  have  been  made,  from  time 
to  time,  by  members  of  the  Court,  to  the  effect  that  the 
national  government  is  one  of  enumerated  powers,  and 
may  exercise  no  power  not  expressly  granted  or  neces- 
sarily implied;  although  it  does  not  appear  that  the 
rule  has  been  thus  stated  in  any  case  which  involved  the 
authority  of  the  general  government  to  act  in  external 
affairs. 

Congress  more  than  once  has  passed,  and  the  Supreme 
Court  has  upheld,  legislation  which  could  be  justified 
only  upon  the  hypothesis  that  there  was,  under  some 
conditions,  a  broader  basis  for  the  exercise  of  power  than 
that  afforded  by  this  conception  of  the  rule ;  legislation 
which  must  find  its  support  in  a  rule  as  broad  as  that 
formulated  by  Alexander  Hamilton :  "There  are  express 


52      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

and  implied  powers,  and  the  latter  are  as  effectually  dele- 
gated as  the  former;  there  is  also  another  class  of  powers 
which  may  be  called  resulting  powers — resulting  from 
the  whole  mass  of  the  power  of  government,  and  from 
the  nature  of  political  society,  rather  than  as  a  con- 
sequence of  any  especially  enumerated  power." 

The  most  striking  illustration  of  the  application  of 
this  broader  rule  is  that  involved  in  the  acquisition,  and 
somewhat  less  clearly,  in  the  government  of  new  terri- 
tory. There  is  no  provision  in  the  Constitution  by  which 
the  national  government  is  specifically  authorized  to 
acquire  territory;  and  only  by  a  great  effort  of  the 
imagination  can  the  substantive  power  to  do  so  be 
found  in  the  terms  of  any  or  all  of  the  enumerated 
powers.  The  question  arose  very  early  in  our  history 
in  connection  with  the  Louisiana  purchase.  It  has  been 
asserted  that  Mr.  Jefferson  thought  the  acquisition 
without  constitutional  warrant ;  but  what  he  challenged 
was  not  the  power  to  acquire  and  govern  Louisiana  but 
the  power  to  incorporate  it  into  the  Union.  In  the 
opinion  of  the  Secretary  of  the  Treasury,  Albert  Galli- 
tan,  a  statesman  of  ability  and  a  lawyer  of  great  learn- 
ing, the  acquisition  was  justified  either  under  the  con- 
stitutional power  to  make  treaties,  or  as  an  exercise  of 
the  inherent  right  of  the  United  States  as  a  Nation.  Chief 
Justice  Marshall  upheld  the  validity  of  the  acquisition 
under  the  treaty-making  power,  saying  that  the  "govern- 
ment possesses  the  power  of  acquiring  territory  either 
by  conquest  or  by  treaty."  1  The  broader  basis  stated 
by  Mr.  Gallatin  was  neither  affirmed  nor  denied.  Mr. 
Justice  Story,  in  his  work  on  the  Constitution,  upholds 

1  i  Peters  543. 


EXTERNAL  POWERS  53 

the  power  of  the  government,  but  thinks  it  is  not  de- 
pendent "upon  any  specific  grant"  but  "flows  as  an  in- 
cidental power  from  its  sovereignty  over  war  and 
treaties."  2 

We  have  acquired  much  territory  under  treaty  pro- 
visions and  by  conquest,  and  in  such  case  the  acquisition 
may  be  regarded  as  incidental  to  the  powers  mentioned ; 
but  we  have  also  acquired  territory  by  original  discovery' 
and  appropriation  alone.  Such  is  the  fact  with  reference 
to  a  large  portion  of  Oregon ;  and  such  is  peculiarly  the 
fact  with  reference  to  certain  small  islands  of  the  sea — 
the  so-called  Guano  Islands.  An  act  of  Congress  provides 
for  the  acquisition  by  Executive  proclamation  of  any 
islands  valuable  for  their  deposits  of  guano,  discovered 
by  citizens  of  the  United  States  and  not,  at  the  time  of 
discovery,  occupied  or  possessed  by  any  other  govern- 
ment or  its  citizens.  By  virtue  of  the  provisions  of  this 
act  and  certain  general  statutes,  offenses  committed  on 
these  islands  are  made  cognizable  in  the  judicial  dis- 
trict "where  the  offender  is  found,  or  into  which  he  is 
first  brought."  Some  years  ago  a  man  named  Henry 
Jones  committed  a  homicide  on  one  of  these  islands,  and 
having  been  first  brought  to  the  District  of  Maryland, 
was  there  indicted,  tried  for  and  convicted  of  murder. 
The  power  of  the  general  government  to  acquire  terri- 
tory for  the  United  States  by  simple  discovery  and  occu- 
pation was  therefore  directly  involved.  The  question 
could  not  be  determined  by  reference  to  the  war  powers 
or  the  treaty- making  power:  there  was  no  war;  there 
was  no  treaty;  there  was  no  one  against  whom  war 
could  be  waged;  and  there  was  no  one  with  whom  a 

'Story,  Constitution,  Section  1287. 


54      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

treaty  could  be  made.  Nevertheless,  the  Supreme 
Court  upheld  the  validity  of  the  acquisition  under  the 
act  of  Congress,  not  by  virtue  of  any  constitutional  power 
but  wholly  by  virtue  of  the  established  principles  of  in- 
ternational law.  The  opinion  was  rendered  by  Mr.  Jus- 
tice Gray,  who  said : 

"By  the  law  of  nations,  recognized  by  all  civilized  states,  dominion 
of  new  territory  may  be  acquired  by  discovery  and  occupation,  as 
well  as  by  cession  or  conquest;  and  when  citizens  or  subjects  of  one 
nation,  in  its  name,  and  by  its  authority  or  with  its  assent,  take  and 
hold  actual,  continuous  and  useful  possession  (although  only  for 
the  purpose  of  carrying  on  a  particular  business,  such  as  catching 
and  curing  fish,  or  working  mines)  of  territory  unoccupied  by  any 
other  government  or  its  citizens,  the  nation  to  which  they  belong 
may  exercise  such  jurisdiction  and  for  such  period  as  it  sees  fit  over 
territory  so  acquired.  This  principle  affords  ample  warrant  for  the 
legislation  of  Congress  concerning  guano  islands." 

Previous  acquisitions  of  territory  had  been  vindicated 
as  having  been  made  in  the  exercise  of  certain  specifically 
granted  powers  of  the  Constitution,  and  as  purely  inci- 
dent thereto.  In  this  instance,  however,  the  islands 
were  acquired  not  as  incident  to  the  exercise  of  some 
other  and  distinct  power  but  substantively  and  under 
circumstances  wholly  disconnected  from  any  act  save 
the  acquisition  itself.  We  must  infer  there  was  no  pro- 
vision, or  combination  of  provisions,  from  which,  in  the 
opinion  of  the  Court,  the  authority  could  be  derived, 
since  none  is  mentioned ;  and  we  are  forced  to  conclude 
that  the  Supreme  Court  has,  in  this  case,  recognized  the 
possession  of  a  power  by  the  General  government,  not 
referable  to  the  terms  of  the  Constitution — a  power,  the 
exercise  of  which  must  be  regarded  as  simple  usurpation, 
unless  it  be  conceded  that  it  resulted  from  the  whole 


EXTERNAL  POWERS  55 

mass  of  governmental  power,  or  from  the  nature  of 
political  society,  that  is,  as  a  necessary  consequence  of 
nationality.  The  act  of  Congress  was  upheld  not  as  an 
exercise  of  any  constitutionally  delegated  power  but  upon 
the  sole  ground  that  the  "dominion  of  new  territory  may 
be  acquired  by  discovery  and  occupation,  as  well  as  by 
cession  or  conquest"  under  a  universally  recognized 
principle  of  international  law;  and  it  is  this  principle, 
and  not  any  grant  or  implication  of  the  Constitution, 
which,  in  the  unanimous  opinion  of  the  Supreme  Court, 
"affords  ample  warrant  for  the  legislation."  No  member 
of  that  Court  has  ever  repudiated  the  doctrine  thus  as- 
serted. It  has  been  followed  in  subsequent  cases  with- 
out qualification  or  comment,  the  Court  merely  affirm- 
ing, upon  the  authority  of  prior  decisions,  the  power  of 
the  general  government  to  acquire  territory  by  dis- 
covery and  occupation  alone,  saying  that  any  discussion 
of  the  source  of  its  power  was  unnecessary.  It  is  not 
easy,  therefore,  to  avoid  the  conclusion  that  legislation 
may  be  in  a  sense  ex/ra-constitutional  without  being  un- 
constitutional.  At  any  rate  those  who  would  deny  the 
existence  of  any  governmental  power  resulting  from  the 
fact  that  the  general  government  alone  exercises  the 
attributes  of  nationality,  and  is  the  only  government 
competent  to  exercise  the  powers  of  external  sovereignty, 
must  first  reject  the  established  doctrine  of  this  case  and 
repudiate  our  occupation  of  Oregon  and  the  Guano 
Islands  as  being  without  right  or  title;  for  this  case 
constitutes  not  an  exception  which  proves  the  general 
rule  but  an  illustration  which  destroys  it,  since  the  rule 
for  which  they  contend  is  that  the  national  government 


56      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

possesses  no  power  not  delegated  by,  or  necessarily 
implied  from  the  words  of  the  Constitution. 

The  principle  involved  in  the  Jones  case  is  recognized 
and  asserted  in  other  decisions  of  the  Supreme  Court. 
No  comprehensive  review  of  these  decisions  can,  of 
course,  be  attempted,  but  a  brief  reference  to  some  of 
them  may  prove  instructive.  In  the  Legal  Tender 
Cases,3  Mr.  Justice  Strong,  speaking  for  the  majority 
of  the  court,  said  that  the  adoption  of  the  first  ten 
amendments  indicated  that  in  the  judgment  of  those 
who  adopted  the  Constitution  there  were  powers  created 
by  it  not  specified  nor  deducible  from,  or  ancillary  to, 
any  one  specified  power  "but  which  grew  out  of  the 
aggregate  of  powers  conferred  upon  the  government, 
or  out  of  the  sovereignty  instituted" 

Mr.  Justice  Bradley  in  a  concurring  opinion  char- 
acterized the  United  States  as  "a  national  government 
and  the  onry  government  in  this  country  having  the 
character  of  nationality,"  and  added : 

"Such  being  the  character  of  the  General  government,  it  seems  to 
be  a  self-evident  proposition  that  it  is  invested  with  all  those  in- 
herent and  implied  powers  which,  at  the  time  of  adopting  the 
Constitution,  were  generally  considered  to  belong  to  every  govern- 
ment as  such,  and  as  being  essential  to  the  exercise  of  its  functions." 

Early  in  the  history  of  the  country  Congress  passed 
the  so-called  Alien  and  Sedition  Laws,  the  constitution- 
ality of  which  was  savagely  attacked,  as  well  as  stoutly 
defended.  The  power  of  the  general  government  to 
expel  undesirable  aliens  was  denied  by  the  Virginia  and 
Kentucky  resolutions  and  upheld  by  Massachusetts  and 
other  northern  states.  The  Alien  Act  was,  by  its  terms, 

*  12  Wall  457. 


EXTERNAL  POWERS  57 

limited  to  a  period  of  two  years,  and  never  came  before 
the  Supreme  Court  for  consideration.  The  Chinese 
Exclusion  and  Expulsion  Acts — the  latter  presenting 
precisely  the  same  question  as  that  involved  in  the 
Alien  Act  passed  almost  a  century  later — were,  how- 
ever, sustained  by  that  Court  after  full  consideration. 
The  Exclusion  Act  was  upheld  by  virtue  of  the  "accepted 
maxim  of  international  law  that  every  sovereign  nation 
has  the  power,  as  inherent  in  sovereignty,  and  essential 
to  self-preservation,  to  forbid  the  entrance  of  foreigners 
within  its  dominions,  or  to  admit  them  only  in  such 
cases  and  upon  such  conditions  as  it  may  see  fit  to 
prescribe."  4  The  validity  of  the  Expulsion  Act  was 
affirmed  as  a  legitimate  exercise  of  the  powers  of  sov- 
ereignty as  recognized  by  the  law  of  nations :  "the  right 
to  exclude  or  expel  all  aliens,  or  any  class  of  aliens, 
absolutely  or  upon  certain  conditions,  in  war  or  in 
peace,  being  an  inherent  and  inalienable  right  of  every 
sovereign  and  independent  nation,  essential  to  its  safety, 
its  independence  and  its  welfare."  5 

In  the  last-named  case,  three  justices  disserited.  The 
dissenting  opinions  of  Justices  Brewer  and  Field  con- 
ceded the  power  of  exclusion  but  denied  the  power  of 
expulsion,  the  former  Justice  placing  the  distinction 
upon  the  ground  that  the  Constitution  having  no  extra- 
territorial effect,  those  who  have  not  come  lawfully 
within  our  territory  cannot  claim  the  protection  of  its 
provisions,  and,  further,  that  the  national  government 
having  full  control  of  all  matters  relating  to  other  na- 
tions may  have  the  power  to  absolutely  forbid  aliens  to 


*  142  U.  S.  659. 
6 149  U.  S.  698. 


58      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

enter;  but  that  the  Constitution  has  potency  every- 
where within  the  limits  of  our  territory,  and  the  powers 
which  the  national  government  may  exercise  within 
that  territory  are  only  such  as  are  conferred  by  that  in- 
strument which  nowhere  gives  the  power  to  remove 
resident  aliens.  These  cases  and  the  various  opinions, 
taken  together,  afford  persuasive  ground  for  the  con- 
tention that  powers  to  be  exercised  externally  are  not 
exclusively  derived  from,  and  are,  consequently,  not 
limited  to,  the  grants  and  implications  of  the  Constitu- 
tion, but  may  find  their  warrant  outside  the  terms  of 
that  instrument  in  the  accepted  rules  of  international 
law.  The  fact,  also,  that  all  such  powers  are  denied  the 
several  states  lends  additional  strength  to  this  con- 
clusion. Indeed,  the  view  of  one  of  the  most  scholarly 
and  deeply  learned  jurists  the  country  has  ever  known, 
Judge  Campbell,  a  former  justice  of  the  Supreme  Court 
of  Michigan,  seems  to  be  that  this  circumstance  alone 
may  constitute  a  sufficient  basis  for  the  conclusion. 
He  says : 

"Under  the  Constitution  of  the  United  States  all  possible  powers 
must  be  found  in  the  Union  or  the  states,  or  else  they  remain  among 
those  reserved  rights  which  the  people  have  retained  as  not  essential 
to  be  vested  in  any  government.  That  which  is  forbidden  to  the  states 
is  not  necessarily  in  the  Union,  because  it  may  be  among  the  reserved 
powers.  But  if  that  "which  is  essential  to  government  is  prohibited  to 
one  it  must  of  necessity  be  found  in  the  other,  and  the  prohibition  in 
such  case  on  the  one  side  is  equivalent  to  a  grant  on  the  other" 

That  the  general  government  possesses  complete 
powers  of  sovereignty  over,  as  well  as  full  ownership 
in,  new  territory,  is  well  settled.  The  power  to  acquire 
new  territory  being  conceded  or  established,  the  power 


EXTERNAL  POWERS  59 

to  govern  would  seem  to  follow  as  a  necessary  conse- 
quence. The  precise  basis  upon  which  it  rests,  however, 
may  be  important  as  reflecting  light  upon  the  general 
question  under  consideration,  as  well  as  suggesting  the 
scope  and  extent  of  the  power  itself.  The  property 
clause  of  the  Constitution  has  frequently  been  quoted 
as  conferring  the  power  to  govern.  That  clause  reads 
as  follows:  "The  Congress  shall  have  power  to  dispose 
of,  and  make  all  needful  rules  and  regulations  respecting 
the  territory  and  other  property  belonging  to  the 
United  States."  It  is,  of  course,  with  the  utmost  defer- 
ence to  the  opinions  of  the  Supreme  Court  deducing  the 
power  from  this  provision,  that  I  venture  to  suggest  a 
doubt  respecting  the  soundness  of  the  conclusion.  Let 
us  examine  the  language  of  the  provision.  The  power 
is  (i)  "To  dispose  of  .  .  .  the  territory  or  other  prop- 
erty belonging  to  the  United  States."  It  will  scarcely 
admit  of  question  that  here  the  power  or  disposal  relates 
to  territory  as  property  and  not  to  territory  as  an  organic 
field  of  government.  The  power  is  (2)  "To  make  all  need- 
ful rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States."  Here,  it  is 
to  be  observed,  the  power  is  not  to  govern  or  to  make 
laws  but  to  make  rules  and  regulations;  and  while  it  is 
true  that  Congress  can  make  rules  and  regulations  only 
by  legislating,  the  words  are  not  such  as  we  should 
expect  the  framers  of  the  Constitution  to  employ,  if 
general  powers  of  government  had  been  intended.  The 
Constitution,  as  we  know,  was  framed  with  great  care, 
and  its  language  chosen  with  a  view  to  precise  expres- 
sion. In  the  provision  relating  to  the  seat  of  govern- 
ment (afterwards  to  be  established  as  the  District  of 


60      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

Columbia)  and  to  the  places  purchased  for  forts,  arse- 
nals, and  so  on,  the  power  prescribed  is  "to  exercise 
exclusive  legislation  in  all  cases  whatsoever  over  such 
district,  etc."  The  exercise  of  complete  governmental 
authority  is  by  these  words  obviously  contemplated. 
If  like  power  had  been  intended  by  the  property  clause 
it  is  difficult  to  understand  why  similar  language  was 
not  used  instead  of  words  whose  ordinary  signification 
must  be  strained  in  order  to  import  the  extended  mean- 
ing attributed  to  them.  There  is,  moreover,  a  rule  of 
legal  interpretation — which,  unlike  some  of  the  laws 
that  call  for  its  application,  accords  with  common  sense 
as  well — known  as  the  rule  of  associated  words,  which 
means  that  a  word,  like  an  individual,  may  be  known 
by  the  company'  it  keeps.  If  a  law,  for  example,  forbid 
the  doing  of  something  in  a  theater,  church,  or  other 
public  place,  the  words  "other  public  place"  are  not  to 
be  construed  as  including  parks,  streets,  or  open  places 
but  must  be  confined  to  places  similar  to  those  enumer- 
ated, that  is,  to  other  enclosed  public  places.  On  the 
other  hand,  if  the  law  forbid  the  doing  of  something  in 
a  park,  or  street,  or  other  public  place,  the  words  "other 
public  place"  in  that  association  of  words,  are  to  be 
given  an  exactly  opposite  construction,  that  is,  they 
must  be  held  not  to  include  public  buildings  but  only 
other  open  places. 

Here  the  associated  words  are  "territory  or  other 
property."  The  word  territory  is,  therefore,  found  in 
association  with  the  word  property,  and,  if  susceptible  of 
a  double  meaning — that  is,  of  a  restricted  and  also  of  a 
more  general  meaning — as  it  is,  should  be  assimilated 
to  the  meaning  of  the  word  which  it  accompanies.  The 


EXTERNAL  POWERS  6l 

employment  of  the  word  "other"  to  qualify  the  word 
"property"  would  seem,  obviously,  to  imply  that  the 
antecedent  "territory"  was  used  in  the  same  sense-^-that 
is,  in  the  sense  of  property — otherwise  the  word  prop- 
erty would  mean  simply  property  but  not  other  prop- 
erty. It  must  follow,  then,  that  the  word  territory  is 
to  be  given  its  proprietary,  rather  than  its  political 
meaning,  that  is,  it  is  to  be  interpreted  as  though  the 
expression  had  been  "lands"  or  "public  domain."  That 
territory  as  property,  and  not  organic  territory,  was 
intended,  is  also  borne  out  by  the  consideration  that 
the  evident  purpose  is  to  include  "territory  or  other 
property,"  wherever  situated,  since  the  only  qualification 
is  that  it  must  be  something  "belonging  to  the  United 
States."  Vast  areas  of  public  lands  lying  within  the 
limits  of  western  states  today,  constitute  "territory 
.  .  .  belonging  to  the  United  States",  but  toward 
such  lands  the  relation  of  the  United  States  is  uniformly 
held  to  be  that  of  proprietor  and  not  that  of  sovereign. 
Prior  to  the  admission  of  these  states  into  the  Union, 
Congress  occupied  toward  these  lands  a  double  relation- 
ship, namely,  that  of  proprietor  and  that  of  sovereign. 
As  proprietor  it  disposed  of  the  lands  under  the  prop- 
erty clause  of  the  Constitution ;  as  sovereign  it  governed 
the  territory  embracing  both  public  lands  and  private 
lands.  When  the  territory  became  a  state,  the  powers 
of  internal  sovereignty  of  the  general  government 
passed  to  the  state,  but  its  proprietorship  still  contin- 
ued. Under  the  constitutional  grant  of  power  con- 
tained in  the  property  clause,  Congress  might  still  make 
rules  and  regulations  of  a  proprietary  character,  re- 
specting its  territory  lying  within  the  limits  of  the 


62      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

state,  but  could  not  legislate  with  respect  to  municipal 
or  other  purposes,  except  as  the  power  to  do  so  is 
recognized  by  provisions  of  the  Constitution,  entirely 
apart  from  this  particular  clause.  Since,  therefore,  the 
clause  under  consideration  applies  to  public  lands  lying 
within  the  borders  of  a  state,  as  well  as  to  those  outside, 
and  since  the  powers  of  general  legislation  may  not  be 
exercised  over  such  lands  within  a  state,  it  seems  logical 
to  conclude  that  the  power  conferred  upon  Congress 
was  intended  to  be  of  that  limited  character,  which  may 
be  exercised  over  all  territory  or  other  property  of  the 
United  States  irrespective  of  locality. 

That  the  usual  powers  of  legislation  were  not  con- 
templated is  indicated  from  another  point  of  view.  It 
is  well  established  that  legislative  power  cannot  be  del- 
egated; yet  Congress  and  the  courts  have  again  and 
again  recognized  the  validity  of  regulations  made  by 
groups  of  miners,  or  imposed  by  state  or  territorial 
laws,  affecting  the  possession  and  acquisition  of  mineral 
lands  constituting  part  of  the  public  domain. 

Mr.  Justice  Brewer,  speaking  of  such  regulations  and 
upholding  their  binding  quality  6  said  that  Congres- 
sional legislation  providing  for  the  disposal  of  public 
lands  savored  somewhat  of  mere  rules  prescribed  by  an 
owner  of  property;  that  it  was  not  legislation  in  the 
highest  sense  of  that  term;  and  that,  as  the  principal 
agent  of  an  owner  may  employ  subordinates  with  lim- 
ited discretion,  Congress  may  intrust  to  local  legisla- 
tures the  determination  of  minor  matters  respecting  the 
disposal  of  public  lands. 

6 196  U.  S.  126. 


EXTERNAL  POWERS  63 

Again :  the  powers  described  are  to  be  exercised  with 
reference  to  territory  or  other  property  "belonging  to" 
the  United  States.  These  are  words  commonly,  though 
not  always,  used  to  denote  ownership  rather  than  juris- 
diction. To  speak  of  a  thing  as  "belonging  to"  any  one 
is  another  way  of  asserting  his  proprietorship.  That 
the  words  were  used  in  this  sense  when  applied  to 
"property"  would  seem  clear,  and  in  this  sense  they 
appropriately  apply  to  the  word  "territory"  treated  as 
property.  If  the  framers  of  the  Constitution  had  in- 
tended by  this  clause  to  confer  both  governmental  and 
proprietary  powers  upon  Congress,  we  should  naturally 
look  for  language  clearly  giving  the  power  to  deal  with 
territory,  not  only  as  property  belonging  to  the  United 
States,  but  as  country  subject  to  the  jurisdiction  thereof 
as  well. 

That  an  organized  subdivision  of  the  outlying  na- 
tional domain  is  called  a  territory  and  that  the  same 
term  is  used  in  the  clause  under  consideration  is  a 
coincidence  without  substantial  significance.  It  hap- 
pened to  be  so  designated  instead  of  being  called  a 
colony  or  a  province,  which  in  fact  it  is;  but  the  dis- 
tinction is  nevertheless  perfectly  clear  between  a  ter- 
ritory and  the  territory  of  the  United  States.  The 
former  is  a  governmental  subdivision — a  corporate  insti- 
tution; the  latter  is  merely  a  portion  of  the  earth's 
surface — a  piece  of  real  estate.  It  is  in  the  latter  sense 
and  not  in  the  former  sense  that  the  word  is  used  in 
this  clause  of  the  Constitution;  and  it  is  in  the  latter 
sense  and  not  in  the  former  sense  that  the  power  to 
make  rules  and  regulations  respecting  the  territory  as  well 
as  the  other  property  of  the  United  States  is  conferred. 


64      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

From  these  various  considerations  it  would  seem  to 
follow  that  the  clause  in  question  is  a  mere  property 
clause,  having  no  relation  to  the  high  powers  of  general 
legislation  or  the  sovereign  functions  of  government; 
and  that  the  authority  to  govern  territory  of  the  United 
States  does  not  come  within  the  intendment  of  its 
framers  nor  flow  from  its  words. 

Nevertheless,  the  power  unquestionably  exists,  al- 
though the  sources  must  be  traced  to  considerations 
quite  apart  from  the  property  clause  of  the  Constitu- 
tion. It  is  a  power  which  no  state  government  can 
exercise  and  yet  one  whose  exercise  is  so  palpably  essen- 
tial, that  it  cannot  be  supposed  to  be  among  the  powers 
impounded  by  being  reserved  to  the  people.  It  must, 
therefore,  as  a  matter  of  imperious  necessity,  be  found 
among  the  powers  of  the  general  government ;  and  the 
basis  upon  which  it  rests  is  that  of  national  supremacy. 
The  power  to  govern,  like  the  power  to  acquire,  new 
territory  is  an  attribute  of  sovereignty  under  the  law 
of  nations;  and  its  practical  exercise  must  necessarily 
attach  to  the  national  government  as  the  only  agency 
capable  of  exercising  it.  And  this  brings  us  to  the  con- 
clusion that  the  power  to  govern,  whether  regarded  as 
corollary  to,  or  independent  of,  the  power  to  acquire 
territory,  exists  in  the  national  government,  not  by 
virtue  of  an  affirmative  grant  of  the  Constitution  but 
by  virtue  of  the  "ownership  of  the  country  in  which  the 
territories  are,  and  the  right  of  exclusive  sovereignty 
which  must  exist  in  the  national  government,  and  can 
be  found  nowhere  else."  7 

7  U.  S.  vs.  Kagama,  118  U.  S.  380. 


EXTERNAL  POWERS  65 

In  1899,  Elihu  Root,  then  Secretary  of  War,  had 
occasion  to  formulate  the  general  principles  applicable 
to  the  government  of  our  over-seas  possessions  acquired 
under  the  treaty  of  Paris.  After  saying  that  the  acqui- 
sition was  the  exercise  of  a  power  which  belonged  to  us 
because  we  were  a  Nation,  and  that  we  possessed  all 
the  powers  in  respect  of  the  acquired  territory,  and  its 
inhabitants,  which  any  nation  in  the  world  has  in 
respect  of  territory  which  it  has  acquired,  and  that 
these  powers  were  not  subject  to  any  legal  limitations 
except  those  to  be  found  in  the  treaty,  he  added : 

"The  people  of  the  ceded  islands  have  acquired  a  moral  right  to 
be  treated  by  the  United  States  in  accordance  with  the  underlying 
principles  of  justice  and  freedom,  which  we  have  declared  in  our 
Constitution,  and  which  are  the  essential  safeguards  of  every  indi- 
vidual against  the  powers  of  government,  not  because  those  pro- 
visions were  enacted  for  them  but  because  they  are  essential 
limitations  inherent  in  the  very  existence  of  the  American  gov- 
ernment." 8 

In  legislating  for  the  government  of  a  territory, 
Congress  is  not  limited  to  the  powers  enumerated  in 
the  Constitution.  Its  authority  is  plenary  and  subject 
only  to  such  prohibitions  and  restrictions  as  are  in- 
tended to  preclude  the  action  of  the  legislative  depart- 
ment under  all  circumstances  and  conditions.  Con- 
gress, for  example,  is  without  power  to  enact  for  a 
territory  an  ex  post  facto  law,  or  a  bill  of  attainder,  since 
the  prohibition  against  such  legislation  is  absolute  and 
applies  irrespective  of  time  or  place.  The  authority  of 
Congress,  however,  except  as  thus  limited,  extends  to 
every  form  of  legislative  activity.  Its  powers  are  as 

•  Military  and  Colonial  Policy,  161-162. 


66      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

ample  as  those  of  the  English  Parliament  in  dealing 
with  the  outlying  possessions  of  the  British  Empire. 
It  possesses  and  exercises,  to  use  the  language  of  the 
Supreme  Court  in  National  Bank  vs.  Yankton,9  "all 
the  powers  of  the  People  of  the  United  States  except 
such  as  have  been  expressly  or  by  implication  reserved 
in  the  prohibitions  of  the  Constitution." 

Whether  the  Constitution  of  its  own  force  extends  to 
the  territories  is  a  question  which  has  given  rise  to 
earnest,  and  sometimes  bitter,  differences  of  opinion. 
Prior  to  the  Civil  War,  it  was  a  question  of  the  greatest 
moment  and  gravity  involving,  as  it  did,  the  issue  as  to 
whether  the  institution  of  slavery  went  to  these  posses- 
sions under  the  shelter  of  the  Constitution.  That  ques- 
tion divided  the  people  of  the  United  States  into  three 
hostile  political  camps.  The  Breckenridge  Democrats 
asserted,  in  effect,  that  neither  national  nor  territorial 
legislation  was  competent  to  destroy  or  impair  the  title 
of  the  slaveholder  to  his  peculiar  property ;  the  Repub- 
lican Party  denounced  the  dogma  that  the  Constitu- 
tion, of  its  own  force,  carried  slavery  into  the  territories 
as  a  dangerous  political  heresy,  at  variance  with  the 
provisions  of  that  instrument  itself,  as  well  as  legisla- 
tive and  judicial  precedent;  the  Douglas  Democrats 
straddled  the  question  by  simply  announcing  their 
willingness  to  abide  by  the  decision  of  the  Supreme 
Court;  while  Douglas  himself  declared  his  adherence 
to  the  doctrine  that  the  inhabitants  of  the  territories 
possessed  the  inherent  right  to  determine  the  question 
for  themselves,  a  doctrine  which  passed  into  the  politi- 
cal nomenclature  of  the  day,  under  the  name  of  "squat- 

9  ioi  U.  S.  133. 


EXTERNAL  POWERS  67 

ter  sovereignty."  These  contentions  are  no  longer  of 
any  direct  concern,  but  they  constitute  interesting 
records  of  the  wanderings  and  gropings  of  a  bygone 
generation  in  their  search  for  the  true  path  of  consti- 
tutional construction,  a  process  which  has  played  a  far 
more  important  role  in  the  development  of  constitu- 
tional government  than  the  people  of  today,  secure  in 
the  stability  of  their  institutions,  are  in  the  habit  of 
remembering.  Indeed,  the  interpretation  of  the  Con- 
stitution and  the  determination  of  the  scope  and  extent 
of  the  national  authority  have  been  influenced  by  events 
quite  as  much  as  they  have  been  by  logic.  The  framers 
builded  better  than  they  knew;  better  than  any  suc- 
ceeding generation  has  known.  The  Nation  did  not 
immediately  comprehend  its  own  political  nature,  or  at 
once  grasp  the  extent  of  its  own  great  powers.  It  has 
not  reached  full  realization  even  now,  after  the  lapse  of 
more  than  a  century  of  time.  We  have  gradually  arrived 
at  an  understanding,  and  are  gradually  reaching  addi- 
tional understanding  of  our  powers  and  duties  under  the 
Constitution,  not  by  the  conscious  processes  of  analysis 
so  much  as  by  exploration  and  discovery  under  the  com- 
pelling pressure  of  necessity. 

The  doctrine  that  the  Constitution  went  of  itself  into 
the  territories,  or  into  the  territory,  of  the  United  States, 
always  discredited,  has  been  long  since  finally  and  con- 
clusively overthrown;  but  it  does  not  follow  that  the 
inhabitants  of  these  possessions  are  not  entitled  to  the 
benefit  of  the  principles  embodied  in  that  instrument. 
The  Constitution  may  be  considered  from  three  several 
points  of  view — or  rather  as  having  been  intended  to 
accomplish  three  distinct  general  objects.  The  first  of 


68      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

these  objects  is  the  establishment  of  a  system  of  govern- 
ment; the  second  is  the  institution  of  certain  controlling 
political  postulates,  to  which  the  operation^  of  govern- 
ment must  conform ;  and  the  third  is  the  fixation  of 
certain  well  settled  rights  of  a  fundamental  personal  char- 
acter, intended  to  safeguard  the  liberties  of  the  indi- 
vidual against  the  operations  of  government  itself. 
The  first  and  second  of  these  objects  concern  only  the 
United  States  as  a  political  society.  The  territories  are 
possessions  of  this  society  but  are  not  constituent  parts 
of  it;  and  it  is  obvious  that  the  provisions  of  the  Con- 
stitution relating  to  these  objects  have  no  application  to 
the  territories,  since  their  inhabitants  can  have  nothing 
to  do  with  the  selection  of  President,  or  members  of 
Congress,  or  with  the  organization  or  operations  of  the 
National  government  or  any  of  its  departments.  The 
inhabitants  of  the  territories  have,  therefore,  no  political 
rights  under  the  Constitution,  but  only  such  as  Congress 
may  choose  to  give  them.  As  to  the  third  and  remain- 
ing class  of  provisions,  the  status  of  the  territories  is 
not  so  clear.  Some  of  the  enumerated  rights  are  of 
such  a  character  that  under  our  system  of  government 
they  could  not  be  denied  to  the  inhabitants  of  a  terri- 
tory or  of  our  possessions  any  more  than  they  could  be 
taken  away  from  the  people  of  a  state.  The  Supreme 
Court  has  suggested  that  the  line  of  separation  lies  be- 
tween certain  natural  rights  enforced  in  the  Constitu- 
tion by  prohibitions  against  any  interference  with  them, 
and  what  may  be  called  artificial  or  remedial  rights 
peculiar  to  our  system  of  jurisprudence.  Among  the 
former  there  is  included  the  rights  of  religious  liberty, 
freedom  of  speech  and  of  the  press,  the  right  to  due 


EXTERNAL  POWERS  69 

process  of  law,  the  immunities  from  unreasonable 
searches  and  seizures,  and  against  cruel  and  unusual 
punishments,  and  such  other  immunities  as  are  indis- 
pensable to  free  government.  Among  the  latter  class 
are  the  rights  to  citizenship,  to  suffrage,  and  to  particu- 
lar methods  of  procedure.10 

So  it  has  been  suggested  that  there  may  be  inherent 
or  unexpressed  principles  which  are  the  basis  of  all  free 
government  which  likewise  restrain  the  power  of  Con- 
gress in  dealing  with  the  territories  and  possessions.11 
Except  as  so  limited,  then,  it  may  be  regarded  as  settled 
doctrine  that  Congress,  in  legislating  for  the  territories, 
or  national  possessions,  possesses  complete  dominion 
and  sovereignty  and  exercises  the  combined  powers  of 
the  general  and  of  a  state  government ;  and  these  limi- 
tations upon  the  powers  of  Congress,  as  Mr.  Justice 
Bradley  has  said,  "exist  rather  by  inference  and  the 
general  spirit  of  the  Constitution  .  .  .  than  by  any 
express  and  direct  application  of  its  provisions."  In 
other  words,  such  of  these  individual  and  civil  rights  as 
are  beyond  the  interfering  power  of  Congress,  are  guar- 
anteed by  the  fundamental  principles  of  free  govern- 
ment rather  than  by  the  direct  force  of  the  Constitution 
in  which  they  are  formulated.  They  cannot  be  denied 
to  the  inhabitants  of  any  territory  subject  to  the  control 
of  the  United  States,  because  they  are  inherently  inviol- 
able ;  and  the  Constitution  is  resorted  to  not  as  supreme 
law  for  their  enforcement  but  as  high  proof  of  their 
existence  and  incontrovertible  nature. 

10  Downes  vs.  Bidwell,  182  U.  S.  271. 

11  Ibid.,  290. 


CHAPTER  IV 

THE  WAR  POWERS— NATURE, 
BASIS  AND  DISTRIBUTION 

Thus  far  we  have  been  discussing  those  external 
powers  of  the  national  government  which  appear  to 
exist  independently  of  the  specific  grants  of  the  Con- 
stitution. The  conclusions  to  which  we  have  come, 
however,  are  not  without  relevance  in  the  consideration 
now  to  be  given  certain  other  external  powers  which  are 
expressly  enumerated.  These  powers,  whether  enumer- 
ated or  unenumerated,  are  alike  in  being  characterized 
by  the  fact  that  they  are  beyond  the  competence  of  the 
several  states,  and  to  the  extent  they  do  not  find  the 
full  measure  of  their  exercise  in  the  authority  of  the 
general  government,  must  remain  dormant ;  and  in  the 
fact  that,  unlike  the  internal  or  domestic  powers,  they 
are  to  be  exercised  and  interpreted  in  the  light  of  that 
body  of  rules  which  regulates  the  intercourse  of  nations. 
It  may  be  said  further,  that  if  it  be  true  that,  without 
reference  to  the  affirmative  grants  of  the  Constitution, 
complete  authority  exists  in  the  general  government  to 
deal  adequately  with  all  external  affairs,  unless  and 
except  as  prohibited  by  the  Constitution  or  contrary 
to  fundamental  principle,  it  follows,  a  fortiori,  that  the 
exercise  of  expressly  enumerated  powers  of  like  char- 
acter is  not  to  be  restricted,  by  any  rule  of  interpreta- 
tion, within  narrower  limits. 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        71 

It  may  be  noted  in  passing  that  the  very  power  to 
wage  war  is  not  expressly  written  into  the  Constitution 
though  it  is,  of  course,  necessarily  implicit  in  that  group 
of  powers,  which  are  expressly  granted,  known  as  the 
war  powers.  These  powers  are  divided  between  Con- 
gress and  the  President,  and,  briefly  stated,  are  as 
follows : 

1.  Congress  is  given  power  to  declare  war,  grant 
letters  of  marque  and  reprisal,  make  rules  concerning 
captures  on  land  and  water,  raise  and  support  armies, 
provide  and  maintain  a  navy,  make  rules  for  the  gov- 
ernment and  regulation  of  the  land  and  naval  forces; 
to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions;   to  provide  for  organizing,  arming,  and  dis- 
ciplining the  militia,  and  for  governing  such  part  of 
them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  states  the  appointment  of  offi- 
cers, and  the  authority  of  training  the  militia,  according 
to  the  discipline  prescribed  by  Congress. 

2.  The  President  is  designated  as  the  Commander- 
in-Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  militia  of  the  several  states  when  called  into 
the  actual  service  of  the  United  States. 

If  what  has  already  been  said  generally,  respecting 
the  self-existent  character  of  the  external  powers  of  the 
national  government,  be  granted,  the  power  to  declare 
and  the  power  to  wage  war,  together  with  all  other  sub- 
sidiary powers  essential  to  the  preparation  for  and  the 
effective  prosecution  of  war,  would  exist  and  their  com- 
plete exercise  devolve  upon  that  government,  ex  neces- 
sitate, even  if  the  Constitution  had  been  silent  on  the 


72      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

subject.  The  right  to  carry  on  war  is  a  necessary  and 
inherent  right  of  all  sovereign  nations,  to  which  they 
may  be  obliged  to  appeal  in  order  to  avoid  destruction. 
The  effect  of  the  enumeration  of  these  powers  in  the 
Constitution,  therefore,  is  not  to  vest  them  in  the 
general  government  so  much  as  it  is  to  prescribe  the 
manner  of  their  exercise,  or  to  designate  the  specific 
agencies  of  the  government  upon  whom  they  shall 
devolve.  A  declaration  of  war,  for  example,  is  generally 
a  matter  for  the  executive.  It  is  the  King  of  England, 
and  not  Parliament,  who  possesses  the  power.  Parlia- 
ment, by  reason  of  its  control  of  the  purse,  may  exercise 
a  restraining  or  even  a  controlling  influence,  and, 
thereby,  delay  or  prevent  a  declaration  of  war  by  the 
King;  but  Parliament  can  neither  directly  declare  nor 
directly  prevent  a  declaration  of  war.  The  framers  of 
our  Constitution,  however,  concluded,  and  I  think 
wisely,  that  such  a  power  in  the  hands  of  a  single  per- 
son was  not  consonant  with  the  genius  and  spirit  of  a 
republic  such  as  ours.  They,  therefore,  provided  that 
Congress,  and  not  the  President,  should  have  the  sole 
power  to  declare  war.  The  effect  of  this,  as  already 
suggested,  is  not  to  confer  a  power  on  the  general  gov- 
ernment which  otherwise  would  not  exist,  but  to  point 
out  the  department  of  that  government  upon  whom 
the  duty  and  responsibility  of  exercising  the  power  shall 
rest.  The  period  of  deliberation  having  passed  and  the 
people,  through  their  chosen  representatives,  having 
determined  upon  war,  vigorous  and  effective  action 
must  ensue,  to  the  end  that  the  conflict  may  be  speedily 
and  successfully  prosecuted.  Here,  singleness  of  com- 
mand and  concentration  of  power  are  vitally  essential, 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        73 

and  so  the  power  to  wage  war  is  given  to  the  President 
as  Commander-in- Chief,  and  not  to  Congress. 

The  war  powers  vested  in  Congress  and  the  war 
powers  vested  in  the  President,  by  virtue  of  his  office  as 
Commander-in-Chief,  are  distinct.  Generally  speak- 
ing, the  war  powers  of  the  President  under  the  Consti- 
tution are  simply  those  which  belong  to  any  Commander- 
in-Chief  of  the  military  forces  of  a  nation  at  war.  The 
Constitution  confers  no  war  powers  upon  the  President  as 
such.  Whatever  war  powers  he  possesses  under  the 
Constitution — that  is,  without  legislative  authority — he 
has,  not  because  he  is  President,  but  because  he  is  Com- 
mander-in-Chief. As  Commander-in-Chief  he  has  no 
greater  or  additional  power  because  he  is  also  President. 
This  is  a  distinction  which  has  been  frequently  over- 
looked and  because  not  always  borne  in  mind  has  led 
to  much  confusion  of  thought.  It  will  tend  to  a  more 
distinct  understanding  of  the  President's  powers  and 
limitations  as  Commander-in-Chief,  if  we  will  leave  out 
of  consideration  altogether  the  fact  that  he  is  President, 
and  think  of  him  as  a  person  who  holds  the  military 
office  only.  As  President  he  is  the  Executive  depart- 
ment of  the  government,  authorized  to  grant  reprieves 
and  pardons;  in  connection  with  the  senate,  to  make 
treaties  and  appoint  officers;  to  inform  Congress,  from 
time  to  time,  as  to  the  state  of  the  Union;  to  recom- 
mend such  measures  of  legislation  as  he  deems  neces- 
sary and  expedient ;  to  convene  the  Houses  of  Congress, 
or  either  of  them  on  extraordinary  occasions;  to  ad- 
journ Congress  in  case  of  disagreement  between  the 
Houses  as  to  the  time  of  adjournment;  to  receive  am- 
bassadors and  other  public  ministers;  to  commission 


74      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

all  the  officers  of  the  United  States,  and  take  care  that 
the  laws  be  faithfully  executed.  All  these  duties  relate, 
primarily,  to  a  condition  of  peace;  that  is,  they  do  not 
contemplate  war  as  a  basis  for  their  exercise,  though,  of 
course,  they  may  be  exercised  in  time  of  war  as  well  as 
in  time  of  peace.  He  does  not,  however,  command  the 
military  forces  of  the  United  States  as  President  but  as 
Commander-in-Chief.  The  two  offices  bear  no  neces- 
sary relation  to  one  another,  and  the  power  to  be  exer- 
cised in  the  one  office  is  in  no  manner  amplified,  re- 
stricted, or  affected  by  the  circumstance  that  the  same 
person  also  occupies  the  other  office.  When  war  has 
been  declared  by  Congress,  the  duty  and  power  of 
waging  war  immediately  attaches  to  the  office  of 
Commander-in-Chief,  not  to  the  office  of  President. 
Many  persons  are  in  the  habit  of  thinking  of  the  Presi- 
dent as  possessing  extensive  war  powers,  simply  be- 
cause he  is  President  in  time  of  war,  but,  I  repeat,  such 
war  powers  are  his  by  virtue  of  being  Commander-in- 
Chief,  and  not  by  virtue  of  being  President.  The  office 
of  Commander-in-Chief,  having  been  created  by  the 
Constitution  without  prescribing  the  functions  and 
powers  to  be  exercised,  it  necessarily  results  that  these 
are  to  be  determined  by  ascertaining  what  functions 
and  powers  are  recognized  by  the  laws  of  war  as  belong- 
ing to  that  office;  and  when  these  have  been  ascer- 
tained, the  line  which  separates  the  war  powers  of 
Congress  from  the  war  powers  of  the  Commander-in- 
Chief  will  have  been  fixed.  On  the  one  side  of  this  line 
Congress  is  supreme,  and  on  the  other  side  the  Com- 
mander-in-Chief is  supreme;  and  neither  may  lawfully 
invade  the  province  of  the  other.  Whatever  any 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        75 

Commander-in-Chief  may  do  under  the  laws  and  prac- 
tices of  war  as  recognized  and  followed  by  civilized 
nations,  may  be  done  by  the  President  as  Commander- 
in-Chief.  In  carrying  on  hostilities  he  possesses  sole 
authority,  and  is  charged  with  sole  responsibility,  and 
Congress  is  excluded  from  any  direct  interference.  In 
the  command  of  the  military  forces,  and  in  the  conduct 
of  the  military  operations,  he  may  adopt  any  means,  or 
follow  any  plan  or  method  his  judgment,  or  the  judg- 
ment of  his  advisers  and  military  subordinates,  may 
approve,  subject  to  the  single  restriction  that  he  do  not 
transcend  the  rules  and  usages  of  war  authorized  and 
recognized  by  the  law  of  nations. 

The  office  of  President  has  grown  in  potency  and 
influence  to  an  extent  never  dreamed  of  by  those  who 
framed  and  adopted  the  Constitution.  Even  in  normal 
times,  Congress  has  been  subjected  to  such  a  degree  of 
executive  domination  as  to  threaten  the  stability  of  the 
principle  of  departmental  independence  involved  in  the 
distribution  of  the  several  powers  among  the  three 
branches  of  government.  There  is  a  popular,  ever- 
increasing  disposition  to  regard  the  President  as  a 
superior  officer  rather  than  as  a  co-equal  member  of  a 
tripartite  organization.  In  times  of  public  danger  or 
disorder  this  tendency  is  greatly  accentuated,  and  it 
is  under  all  conditions  a  matter  for  serious  concern, 
fraught  with  grave  suggestions  of  peril.  In  great  crises, 
the  people  not  only  turn  to  him  as  their  natural  leader, 
which  he  is,  but  they  are  coming  more  and  more  to 
regard  him  as  the  sole  repository  of  their  power  which, 
very  decidedly,  he  is  not.  With  the  advent  of  war,  he 
is  clothed,  by  the  popular  imagination,  not  only  with 


76      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

all  the  imposing  habiliments  of  military  leadership, 
which  are  his  by  right,  but  with  the  role  of  virtual  polit- 
ical dictatorship  as  well,  an  investment  of  power  no 
President  should  ever  be  allowed  to  assume,  and  a  bur- 
den of  responsibility  no  President  should  ever  be  called 
upon  to  bear.  The  danger  from  such  a  situation  is  that 
Congress  will  be  driven  from  its  traditional  and  consti- 
tutional place  in  public  thought,  as  a  co-ordinate 
branch  of  the  government,  with  the  unfortunate  result 
that  subordination  and  obedience  will  tend  to  replace 
common  counsel  and  team  work.  Of  course,  in  time  of 
war,  the  chief  reliance  must  be  the  President,  and  every 
power  which  will  aid  in  the  successful  prosecution  of  the 
war  should  be  freely  and  promptly  given  him  by  Con- 
gress, not  because  the  President  demands  it,  but  be- 
cause, in  the  judgment  of  both  Congress  and  the  Presi- 
dent, it  is  wise  and  expedient  that  it  should  be  granted. 
But  the  possession  of  power  carries  with  it  correspond- 
ing responsibility.  The  war  powers,  with  the  exception 
of  those  pertaining  to  the  office  of  Commander-in-Chief, 
are  vested  in  Congress,  and  that  body  must  exercise  its 
own  judgment  with  respect  to  the  extent  and  character 
of  their  use.  The  advice  and  counsel  of  the  President 
should  be  given  great  weight,  but  the  acceptance  of  the 
President's  recommendations  must  be  the  result  of  in- 
telligent approval  and  not  of  blind  obedience.  Any 
other  course  involves  a  double  betrayal  of  official  trust 
—usurpation  of  power  by  the  President  and  abdication 
of  duty  on  the  part  of  Congress. 

In  the  actual  conduct  of  military  operations,  in  the 
field  where  the  battles  are  being  fought,  in  the  move- 
ment, disposition  and  discipline  of  the  land  and  naval 


WAR  POWERS:    NATURE  AND  DISTRIBUTION         77 

forces,  the  Commander-in-Chief  is  supreme.  His  will 
is  law;  his  decisions  are  final,  subject  to  review  or  re- 
versal at  the  hand  of  no  earthly  power.  He  embodies 
in  his  single  person  the  majesty  and  power  of  the  Nation 
itself.  In  the  territory  of  the  enemy,  occupied  by  the 
forces  under  his  command,  he  may  govern  according  to 
his  discretion.  He  may  supplant  political  institutions 
with  military  governors ;  put  martial  law,  administered 
by  soldiers,  in  the  place  of  municipal  law,  administered 
by  courts.  The  usages  and  laws  of  war  alone,  and  not 
the  Constitution  of  the  United  Ste.ces,  fix  the  limits  of 
his  authority.  Outside  the  field  of  actual  military  oper- 
ations, however,  he  has  only  the  powers  of  the  Chief 
Executive  as  enumerated  and  limited  in  the  Constitu- 
tion. The  soldier  or  the  spy  he  may  try  at  the  drum 
head  and  shoot  at  dawn;  the  citizen  is  under  the  pro- 
tection of  the  guarantees  of  peace  and  subject  only  to 
the  civil  laws  of  the  land. 

The  President  is,  of  course,  Commander-in-Chief  of 
the  Army  and  Navy  at  all  times;  but  in  time  of  peace 
his  activities  are  limited  to  matters  of  routine,  such  as 
the  acquisition  and  distribution  of  munitions  and  mili- 
tary supplies,  the  location  and  movement  of  officers  and 
men,  and  the  building,  equipment,  and  movement  of 
vessels.  Only  in  time  of  war  is  it  possible  to  bring  into 
activity  the  real  war  powers  which  attach  to  his  mili- 
tary office.  The  war  powers  of  Congress,  on  the  other 
hand,  may  be  as  completely  utilized  in  time  of  peace  as 
in  time  of  war,  though,  of  course,  they  never  are.  The 
fact  remains,  however,  that  the  actual  existence  of  war 
is  not  a  necessary  prerequisite  for  Congressional  action 
of  any  kind,  since  the  function  of  Congress  is  to  provide 


78      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

rules  of  action  to  be  put  into  execution  by  others. 
Statutes  may  be  formulated  and  enacted,  in  time  of 
peace,  covering  every  conceivable  contingency  likely  to 
arise  in  time  of  war,  to  be  enforced,  whenever  conditions 
render  them  applicable,  precisely  as  in  the  case  of  laws 
generally.  It  is,  therefore,  quite  inaccurate  to  say  that 
the  powers  of  Congress  are  enlarged  by  the  advent  of 
war;  that  Congress  may  enact  legislation  at  such  a  time 
which  it  would  be  without  power  to  enact  at  another 
time.  A  state  of  war  simply  furnishes  an  occasion  for 
the  application  of  laws  which  are  entirely  valid  in  nor- 
mal times  but  lack  appropriate  conditions  for  making 
them  operative. 

Of  course,  it  is  not  possible  in  time  of  peace  to  antici- 
pate, by  legislation,  the  multitude  of  contingencies 
which  will  arise  in  time  of  war,  and  so  as  a  matter  of 
practical  necessity,  legislation  under  the  war  powers  of 
Congress  must  await,  in  large  measure,  the  course  of 
events,  inasmuch  as  the  character  and  extent  of  such 
legislation  must  depend  upon  the  necessities  of  war,  as 
these  necessities,  from  time  to  time,  are  developed.  This 
situation,  however,  is  one  which  is  due  to  the  limitations 
of  human  foresight  and  not  to  the  nature  of  the  power 
or  the  state  of  affairs  to  be  affected. 

An  important  power  which  belongs  to  the  Com- 
mander-in-Chief  is  that  of  governing  enemy  territory 
actually  occupied  by  his  forces.  He  not  only  has  com- 
plete and  exclusive  authority  over  such  territory  during 
the  progress  of  hostilities,  but  he  may  continue  to  main- 
tain a  military  government  after  hostilities  have  ceased  ; 
otherwise  conditions  of  great  disorder  might  prevail, 
pending  the  establishment  of  civil  government  by  Con- 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        79 

gress.  By  the  conquest  and  occupation  of  enemy  ter- 
ritory, the  government  previously  existing  is,  ipso  facto, 
overthrown,  and,  from  the  necessity  of  the  case,  in  order 
that  anarchy  may  be  prevented,  lawlessness  restrained, 
private  property  protected,  and  the  lives  and  liberties 
of  the  inhabitants  safeguarded,  the  military  commander 
of  the  successful  armies  must  have  power  to  maintain 
temporarily  such  government  as  the  exigencies  of  the 
situation  may  require.  Thus,  when  New  Mexico  was 
occupied  by  our  armies  in  1846,  General  Kearny,  in 
accordance  with  this  rule,  and  under  the  authority  of 
the  Commander-in-Chief,  established  a  provisional  gov- 
ernment which,  in  turn,  enacted  laws,  instituted  courts, 
and  administered  the  civil  affairs  of  the  inhabitants. 
This  government  remained  in  operation  after  the  termi- 
nation of  hostilities  and  its  acts  were  confirmed  as  law- 
ful by  the  Supreme  Court.1 

During  the  existence  of  a  state  of  belligerency,  the 
will  of  the  military  commander  within  occupied  enemy 
territory  is  absolute.  As  forcibly  stated  by  counsel  for 
the  government  in  the  Milligan  case: 

"The  officer  executing  martial  law  is  at  the  same  time  supreme 
legislator,  supreme  judge,  and  supreme  executive.  As  necessity 
makes  his  will  the  law,  he  only  can  define  and  declare  it;  and  whether 
or  not  it  is  infringed,  and  of  the  extent  of  the  infraction,  he  alone 
can  judge;  and  his  sole  order  punishes  or  acquits  the  alleged  of- 
fender." 2 

This  is  called  martial  law,  but,  obviously,  it  is  not 
law  at  all,  for  law  implies  uniformity,  permanency,  uni- 
versality. Martial  law  is  simply  the  arbitrary  will  of  the 

1  20  How.  176. 

*  4  Wall  2. 


80      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

Commander,  exercised  without  reference  to  any  prin- 
ciple and  subject  to  no  limitation  or,  as  said  by  Sir 
Matthew  Hale,  "something  indulged,  rather  than  al- 
lowed as  a  law." 

But  the  power,  whatever  it  may  be  called,  is  one 
which  finds  no  limitations  in  the  Constitution,  or  in  the 
general  laws  of  the  land.  Its  arbitrary  and  absolute 
character  is  shown  by  the  ancient  maxim  by  which  it 
is  characterized :  "The  will  of  the  conqueror  is  the  law 
of  the  conquered."  The  harshness  of  this  ancient  rule, 
in  actual  practice,  has  long  since  passed  away.  As 
administered  under  the  usages  of  modern  and  civilized 
nations,  martial  law,  or,  more  accurately  speaking,  mili- 
tary government,  is  tempered  by  the  dictates  of  fairness 
and  humanity,  and  kept,  as  far  as  possible,  within  the 
bounds  of  necessity;  the  civil  rights  of  the  inhabitants 
are  interfered  with  as  little  as  possible;  and  the  muni- 
cipal laws,  at  the  time  in  force  within  the  occupied 
territory,  are  followed  and  enforced  unless  they  tend  to 
interfere  with  the  prosecution  of  military  operations,  or 
the  accomplishment  of  the  objects  for  which  the  warfare 
was  inaugurated.  Nevertheless,  as  long  as  actual  war- 
fare continues,  the  ancient  maxim  is  the  yard-stick  by 
which  the  power  is  ultimately  measured. 

The  Supreme  Court  of  the  United  States  has  said : 

"In  such  cases  the  conquering  power  has  a  right  to  displace  the 
pre-existing  authority,  and  to  assume,  to  such  extent  as  it  may  deem 
proper,  the  exercise  by  itself  of  all  the  powers  and  functions  of 
government.  It  may  appoint  all  the  necessary  officers  and  clothe 
them  with  designated  powers,  larger  or  smaller,  according  to  its 
pleasure.  It  may  prescribe  the  revenues  to  be  paid,  and  apply  them 
to  its  own  use  or  otherwise.  It  may  do  anything  necessary  to 
strengthen  itself  and  weaken  the  enemy.  There  is  no  limit  to  the 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        8 1 

powers  that  may  be  exerted  in  such  cases,  save  those  which  are  found 
in  the  laws  and  usages  of  war."  3 

When  peace  has  been  restored,  the  severity  of  this 
rule  of  absolute  power  is  abated,  but  the  authority  of 
the  Commander-in-Chief  to  administer  the  govern- 
ment of  conquered  territory  still  continues  until  Con- 
gress shall  have  assumed  control.  This  is  in  accordance 
with  the  precedents  of  our  own  history  and  is  sanctioned 
by  the  general  custom  of  nations.  Military  government 
having  been  instituted  in  accordance  with  the  usages 
of  war,  will  continue  at  the  pleasure  of  the  conqueror. 
It  does  not  end  with  the  cessation  of  hostilities.  In- 
deed, it  is  not  practicable  that  it  should  do  so,  since 
there  must  necessarily  be  a  period  of  time,  after  warfare 
has  ended,  before  civil  government  can  be  established 
and,  in  the  meantime,  government  being  a  necessity  of 
civilized  existence,  the  Commander-in-Chief  as  the 
representative  of  the  conqueror  must  continue  to  gov- 
ern until  superseded  by  other  lawful  authority.  Inas- 
much, however,  as  one  of  the  chief  purposes  of  a  mili- 
tary government  has  been  achieved,  namely,  the  suc- 
cessful prosecution  of  military  operations,  the  power  of 
the  military  commander  will  be  adjusted  to  that  fact 
and  curtailed  accordingly.  His  authority  is  no  longer 
utilized  to  promote  warfare  but  to  preserve  order,  safe- 
guard property,  protect  life;  in  short,  to  administer 
the  ordinary  affairs  of  a  civil  population.  As  a  natural 
consequence,  therefore,  his  power  is  lessened  since  the 
necessity  for  its  unlimited  exercise  no  longer  exists. 
The  power  itself  remains,  but  diminished  in  extent  and 

*  20  Wall  387,  394. 


82      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

changed  in  quality  to  conform  to  the  altered  conditions. 
The  military  commander  still  governs ;  but  he  adminis- 
ters the  laws  of  peace  and  not  of  war. 

The  length  of  time  during  which  military  government 
shall  be  allowed  to  continue  over  conquered  and  ac- 
quired territory  after  the  conclusion  of  a  treaty  of  peace, 
is  a  matter  wholly  for  political  determination,  in  no 
manner  controlled  or  affected  by  the  Constitution,  or 
subject  to  judicial  review  or  determination.  After  the 
acquisition  of  the  Spanish  possessions,  only  a  short 
time  intervened  until  the  establishment  of  civil  govern-, 
ment.  In  the  case  of  the  territory  acquired  from  Mexi- 
co, several  months  elapsed  before  Congress  took  action 
in  that  respect.  In  the  case  of  Porto  Rico,  a  military 
government  continued  for  a  year  after  the  acquisition, 
although  conditions  had  been  entirely  peaceful  during 
the  whole  of  that  time.  In  the  Philippines,  a  much 
longer  time  elapsed ;  but  there,  of  course,  the  situation 
was  altogether  different.  After  the  treaty  of  Paris, 
which  was  ratified  and  proclaimed  on  April  n,  1899, 
the  Islands  were  in  a  state  of  insurrection,  which  con- 
tinued to  be  more  or  less  serious  for  about  a  year,  by 
which  time  organized  opposition  to  the  authority  of 
the  United  States  ceased,  although  a  species  of  guerilla 
warfare  persisted  for  some  time  longer.  It  was  not, 
however,  until  March  2,  1900,  that  Congress  took  the 
first  steps  looking  to  the  establishment  of  a  government 
by  legislative  authority.  Even  then,  a  civil  govern- 
ment was  not  established  by  Congress,  but  provision 
was  made  for  a  continuance  of  government  by  the 
President.  The  so-called  Spooner  amendment  to  the 
army  appropriation  bill  of  that  date,  provided  that: 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        83 

"All  military,  civil  and  judicial  powers  necessary  to  govern  the 
Philippine  Islands  .  .  .  shall,  until  otherwise  provided  by  Con- 
gress, be  vested  in  such  person  or  persons  and  shall  be  exercised  in 
such  manner  as  the  President  of  the  United  States  shall  direct,"  etc. 

The  only  effect  of  this  legislation  was,  probably,  to 
put  an  end,  at  least  technically,  to  the  military  govern- 
ment, created  and  administered  by  the  Commander-in- 
Chief,  and  substitute  a  quasi  civil  government,  created 
and  administered  by  the  President.  The  only  immedi- 
ate action  which  resulted  was  a  laconic  cable  from  the 
Secretary  of  War  to  the  Philippine  Commission,  in  the 
following  words :  "Until  further  orders  government  will 
continue  under  existing  instructions  and  orders."  And 
under  this  amendment  to  an  appropriation  bill  and 
this  somewhat  imperious  telegram  from  the  War  De- 
partment, the  ten  million  inhabitants  of  the  Philippine 
archipelago  were  governed  for  many  months. 

The  President  continued  to  administer  the  affairs 
of  the  Islands,  under  the  authority  of  this  amendment, 
until  July,  1902,  when  Congress  finally  passed  the 
Philippine  Organic  Act,  providing  for  a  complete  sys- 
tem of  civil  government.  It  will  be  seen,  therefore, 
that  after  the  acquisition,  the  Philippines  were  gov- 
erned under  the  war  powers  of  the  Commander-in- 
Chief,  for  a  period  of  nearly  two  years,  and  by  the 
Chief  Executive,  under  a  legislative  power,  for  a  year 
longer. 

Our  acquisition  and  control  of  the  Philippines  con- 
stitute not  only  an  interesting  and  notable  develop- 
ment of  our  national  policies,  but  afford  a  striking 
example  of  the  powers  of  the  President  as  Commander- 
in-Chief  and  of  the  flexible  quality  of  the  powers  of 


84      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

Congress  to  govern  new  territory.  The  acquisition 
itself  and  every  step  taken  for  the  pacification  and 
government  of  the  inhabitants  were  savagely  assailed, 
as  being  contrary  to  the  genius  of  our  institutions  and 
opposed  to  the  plain  provisions  and  principles  of  the 
Constitution. 

However,  not  only  have  events  fully  justified  our 
retention  of  these  possessions — and  it  is  difficult  to 
imagine  how  we  could  have  done  otherwise,  without  a 
deplorable  exhibition  of  national  weakness  if  not  dis- 
honor— but  the  various  steps  for  their  government 
taken  by  the  Commander-in-Chief,  and  by  the  Presi- 
dent, have  been  completely  approved  and  ratified  by 
Congress,  and  their  validity  sustained  by  the  Supreme 
Court. 

The  distinction  between  the  military  government 
established  and  carried  on  under  the  war  powers  of  the 
Commander-in-Chief,  and  the  subsequent  government 
by  the  President,  is  quite  clearly  recognized  by  the 
Philippine  Organic  Act,  the  first  section  of  which  ratifies 
the  action  of  the  President  in  creating  the  Philippine 
Commission  and  conferring  authority  upon  it,  by  the 
executive  order  of  June  21,  1901,  which  was  made 
under  the  authority  of  the  Spooner  amendment,  and 
the  second  section  of  which  ratifies  the  action  of  the 
President,  taken  by  virtue  of  the  authority  vested  in 
him  as  Commander-in-Chief  of  the  Army  and  Navy, 
as  set  forth  in  his  order  of  July  12,  1898. 

The  nature  and  extent  of  the  power  to  declare  and 
enforce  martial  law,  has,  from  time  to  time,  engaged 
the  attention  of  the  Houses  of  Congress  and  of  the 
courts,  and  has  received  earnest  consideration  at  the 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        85 

hands  of  distinguished  legal  and  political  writers.  It  is 
not  difficult  to  state,  in  general  terms,  what  the  power 
is;  the  definition  is  startlingly  simple.  As  already  sug- 
gested, martial  law  is  not  law  at  all;  it  is  simply  the 
arbitrary  will  of  the  military  commander,  tempered, 
in  practice,  by  a  more  or  less  humane  regard  for  the 
actual  necessities  of  the  existing  situation.  To  state, 
however,  what  circumstances  will  justify  its  applica- 
tion, is  a  more  difficult  task.  The  power  of  the  mili- 
tary commander  to  rule  within  the  occupied  territory 
of  a  belligerent  enemy  has  just  been  spoken  of.  But 
this,  according  to  high  authority,  is  the  establishment 
of  military  government  rather  than  of  martial  law,  a 
distinction  which  is  both  technically  accurate  and 
practical,  since  the  former  is  operative  within  enemy 
territory  and  the  latter  within  our  own  boundaries. 

Chief  Justice  Chase,  in  the  Milligan  case,  said  there 
were,  under  the  Constitution,  three  kinds  of  military 
jurisdiction:  one  to  be  exercised  both  in  peace  and  war; 
another  to  be  exercised  in  time  of  foreign  war  outside 
the  United  States,  or  in  time  of  revolution  and  civil 
war  within  the  rebellious  states  or  districts;  and  the 
third  to  be  exercised  in  time  of  invasion  or  insurrection 
within  the  boundaries  of  the  United  States,  or,  during 
revolution,  within  the  states  adhering  to  the  national 
government,  when  the  public  danger  requires  its 
exercise.4 

The  learned  Justice  goes  on  to  say  that  the  warrant 
for  the  exercise  of  the  first  of  these  is  to  be  found  in  the 
acts  of  Congress,  which  provide  for  the  government  of 
the  national  forces  and  prescribe  rules  and  articles  of 

« 4  Wall  141. 


86      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

war;  that  the  second  may  be  distinguished  as  military 
government,  taking  the  place  of  local  law  and  exercised 
by  the  military  commander,  but  under  the  direction  of 
the  President,  with  the  express  or  implied  sanction  of 
Congress;  and  that  it  is  only  the  third  which  may  be 
properly  denominated  martial  law;  and  this  may  be 
called  into  action  by  Congress,  or,  temporarily,  when 
the  action  of  Congress  cannot  be  had,  or  where  justified 
or  excused  by  the  peril,  by  the  President,  in  times  of 
insurrection  or  invasion  or  of  civil  or  of  foreign  war  in 
localities  where  ordinary  law  no  longer  adequately 
secures  public  safety  and  private  rights. 

This  analysis  of  military  jurisdiction  and  definition 
of  martial  law  is  contained  in  a  minority  opinion,  which 
though  not  dissenting  from  the  conclusions  of  the 
majority,  differs  from  the  opinion  of  the  majority  in 
some  particulars.  It  will  be  seen  from  this  opinion  that 
martial  law  may  be  called  into  operation  either  by  the 
action  of  Congress,  or  by  that  of  the  President.  While 
the  opinion  does  not  so  declare,  it  would  seem  clear 
that  the  power,  when  exercised  by  the  Executive  as  an 
original  power,  is  by  virtue  of  his  office  of  Commander- 
in-Chief,  and  not  of  President.  But,  whether  exercised 
by  that  officer  directly,  or  under  enabling  legislation, 
or  by  Congress  directly — if  and  when  that  be  possible 
— it  is  the  Commander-in-Chief  who  enforces  martial 
law,  and  it  is  the  will  of  the  Commander-in-Chief  alone 
which  measures  the  limits  of  its  enforcement. 

In  the  majority  opinion  delivered  by  Mr.  Justice 
Davis,  the  power  of  a  military  commander  to  establish 
martial  law  within  the  lines  of  his  military  district,  out- 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        87 

side  the  zone  of  actual  invasion  or  military  operations, 
is  vigorously  challenged.    The  Court  said: 

"Martial  law  cannot  arise  from  a  threatened  invasion.  The 
necessity  must  be  actual  and  present;  the  invasion  real  such  as 
effectually  closes  the  courts  and  deposes  the  civil  administration."  6 

The  Court  proceeds  to  say  that  if  in  case  of  foreign 
invasion,  or  civil  war,  the  courts  are  closed,  and  it  be 
impossible  to  administer  criminal  justice  according  to 
law,  then,  on  the  theater  of  actual  military  operations, 
where  war  prevails,  and  the  necessity  exists  to  furnish 
a  substitute  for  the  civil  authority,  it  is  allowable  to 
govern  by  martial  rule  until  the  laws  can  again  have 
their  free  course. 

"Martial  rule  can  never  exist  where  the  courts  are  open  and  in  the 
proper  and  unobstructed  exercise  of  their  jurisdiction.  It  is  also 
confined  to  the  locality  of  actual  war."  6 

It  would  seem,  therefore,  in  case  of  foreign  war,  waged 
entirely  beyond  the  boundaries  of  the  United  States, 
the  occasion  for  a  declaration  of  martial  law  within 
our  boundaries  could  never  legitimately  arise. 

This  decision,  and,  more  particularly,  the  majority 
opinion,  in  the  beginning,  was  adversely  and  severely 
criticised  by  many  of  the  loyal  men  of  the  North.  It 
was  denounced  as  usurpation,  as  dangerous  to  the  lives 
and  liberties  of  loyal  citizens,  and  subversive  of  a  free 
people's  will.  There  were  even  threats  of  impeaching 
the  judges.  But  with  the  lapse  of  time  and  the  conse- 
quent subsidence  of  the  passions  aroused  by  the  Civil 
War,  the  enduring  wisdom  and  justice  of  the  decision 

6  4  Wall  127. 
« 4  Wall  127. 


88      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

have  come  to  be  generally  recognized.  It  constitutes 
one  of  the  finest,  among  many,  examples  of  the  intel- 
lectual honesty  and  judicial  courage  of  that  great  tribu- 
nal. If  the  political  structure  erected  by  the  Fathers 
rests  upon  any  one  pillar  more  securely  than  upon 
another,  it  is  upon  that  which  upholds  the  right  of  the 
individual  to  invoke  the  judgment  of  the  civil  courts 
of  the  land  upon  his  conduct.  Presentment  to,  and 
trial  and  judgment  by,  judicial  authority  is  fundamental 
in  our  system  of  jurisprudence,  as  it  is  in  every  other 
having  its  roots  in  the  common  law.  These  are  rights 
so  sacred  and  imperative,  so  vital  to  the  continued 
efficacy  of  free  institutions,  that  nothing  short  of  over- 
whelming and  inevitable  necessity  can  ever  justify 
their  suspension.  So  long  as  that  necessity  does  not 
arise,  the  promoters  of  disloyalty,  in  common  with  other 
malefactors,  must  be  left  to  the  deliberate  processes 
of  the  courts;  but  whenever  the  necessity  does  arise, 
and  the  hand  of  civil  authority  is  no  longer  effective, 
the  arm  of  military  power  may  be,  and  must  be,  invoked 
for  swift  and  relentless  action.  When  the  Nation  is 
fighting  for  its  life,  many  things,  even  things  of  great 
moment,  may  wait;  but  at  such  a  time,  above  all  other 
times,  there  can  be  no  vacillating  truce — no  weak  and 
dubious  parley — with  the  forces  of  disloyalty:  then  if 
the  judge  cannot  act,  the  soldier  must. 

It  must  never  be  forgotten  that  this  is  a  government 
of  laws,  under  which  the  conduct  of  the  individual  must 
conform  to  general,  definite  and  pre-established  rules — 
not  to  the  opinions  of  other  men.  To  substitute  the 
will  of  a  military  commander  for  the  law  of  the  land,  is 
a  step  so  drastic  that  it  may  be  taken,  even  in  time  of 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        89 

actual  war,  only  when  necessary  to  "preserve  the  safety 
of  the  army  and  society."  It  is  a  power,  which,  in  this 
country,  it  would  seem,  may  be  exercised  by  the 
national  government  alone,  since  only  that  government 
may  declare  or  recognize  a  state  of  public  war.  So- 
called  martial  law  in  a  state  of  the  Union  can  never, 
legitimately,  be  anything  more  than  the  use  of  the 
military  forces  as  an  enlarged  posse  comitatus  to  assist 
the  civil  authorities  in  suppressing  disorder  and  en- 
forcing the  laws  of  the  state.  No  conceivable  circum- 
stances, in  my  judgment,  can  ever  warrant  the  gover- 
nor, as  commander  of  the  state  militia,  in  supplanting 
the  statutes  of  the  state  by  the  will  of  a  military  com- 
mander or  commission,  as  was  actually  done  in  one 
of  the  states  in  recent  years.  If  the  disorder  be  so  great 
that  the  state  authorities  can  no  longer  cope  with  it, 
the  remedy  is  to  invite  the  aid  of  the  national  govern- 
ment, under  Article  IV,  Section  4,  of  the  Constitution, 
which  obliges  the  United  States  to  protect  each  state 
against  invasion  and,  when  called  upon,  against  domes- 
tic violence.  In  the  improbable  event  that  the  situa- 
tion does  not  yield  to  this  power,  the  question  of  war 
and  of  martial  rule  will  become  a  matter  for  the  national 
and  not  the  state  government  to  deal  with. 

Closely  allied,  and  sometimes  corollary,  to  the  power 
to  declare  martial  law,  is  the  power  to  suspend  the 
privilege  of  the  writ  of  habeas  corpus.  The  Constitu- 
tion neither  guarantees  this  ancient  writ,  nor  expressly 
provides  for  its  suspension.  As  one  of  the  great  charters 
of  English  constitutional  liberty,  it  accompanied  the 
colonists  from  the  old  world  to  the  new  and  formed  part 
of  the  common  law  of  the  various  states  after  the  success 


90      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

of  the  Revolution.  The  only  provision  of  the  national 
Constitution  referring  to  the  writ  is  that  contained  in 
the  second  clause  of  Section  9,  Article  I,  which  provides: 

"The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended 
unless  when  in  cases  of  revolution  or  invasion  the  public  safety  may 
require  it." 

This  provision  implies  the  existence  of  the  writ  and 
conclusively  assumes  the  authority  of  the  courts  to 
issue  it,  since  it  necessarily  involves  a  judicial  inquiry. 
It  will  be  observed,  also,  that  the  Constitution  does  not 
expressly  authorize  the  suspension  of  the  writ.  It 
assumes  the  power  and  limits  the  occasions  for  its 
exercise.  Before  the  privilege  of  the  writ  can  be  sus- 
pended, not  only  must  there  be  revolution  or  invasion 
of  the  territory  of  the  United  States  but,  in  addition, 
the  public  safety  must  require  the  suspension. 

Under  the  English  practice  the  Habeas  Corpus  Act, 
itself,  is  suspended,  with  the  result  that  the  writ  may 
not  be  issued  at  all.  Our  Constitution  refers  to  the 
privilege  of  the  writ  and  contemplates  that  the  privilege, 
and  not  the  writ  itself,  is  to  be  suspended.  The  effect 
of  this  is  that,  under  our  practice,  after  a  suspension, 
the  writ  may  still  issue,  but  relief  must  be  denied  upon 
showing  a  suspension  of  the  privilege  within  the  terms 
of  the  Constitution. 

The  suspension  has  no  affirmative  effect.  It  makes 
no  one  subject  to  arrest  or  imprisonment,  who  would 
not  otherwise  be  liable.  It  does  not  put  into  operation 
martial  law,  or  deprive  the  citizen  of  any  right  which 
he  would  have  in  the  orderly  and  ordinary  administra- 
tion of  the  law.  It  simply  prevents  relief  under  this 


WAR  POWERS:    NATURE  AND  DISTRIBUTION        91 

summary  and  historic  remedy.  The  accused  must  still 
be  proceeded  against  by  presentment  and  indictment, 
and  is  entitled  to  a  speedy  and  public  trial  with  all  its 
constitutional  incidents. 

Does  the  power  to  suspend  the  writ  pertain  to  the 
office  of  the  Commander-in-Chief  or  must  it  be  exer- 
cised or  authorized  by  Congress?  This  question  has 
met  with  a  variety  of  answers  from  statesmen,  legal 
and  political  writers,  and  the  courts.  The  Supreme 
Court  of  the  United  States,  in  an  early  decision, 
assumed  that  the  power  belonged  to  Congress.  In  the 
early  days  of  the  Civil  War,  President  Lincoln  pro- 
ceeded upon  the  theory  that  it  was  a  power  which  he 
might  exercise  as  Commander-in-Chief,  and  he  acted 
accordingly.  His  conclusion,  however,  was  directly 
challenged  by  Chief  Justice  Taney,  who  held  that  it 
was  a  power  vested  alone  in  Congress.  Thereafter 
Congress  itself  apparently  accepted  that  view,  and  on 
March  3,  1863,  passed  an  act,  by  the  terms  of  which 
the  President  was  authorized  to  suspend  the  privilege 
of  the  writ,  whenever,  in  his  judgment,  the  public  safety 
required  it.  The  act  contained  various  provisions  limit- 
ing the  effect  of  the  suspension  and  regulating  the 
authority  of  the  courts  in  dealing  with  cases  arising 
under  it.  It  would  seem  now  to  be  established  by  the 
weight  of  authority  that  the  power  is  one  which  belongs 
to  Congress,  but  which  Congress  may  delegate  to  the 
President.  At  any  rate,  in  view  of  the  legislation  de- 
volving the  authority  upon  the  President  and  the 
general  acquiescence  in  the  validity  of  the  act,  the 
question  may  be  regarded  as  no  longer  open  to  practical 
dispute. 


CHAPTER  V 

THE  WAR  POWERS— EXTENT  AND 
LIMITATIONS 

The  last  preceding  lecture  dealt  with  the  nature  of 
the  war  powers  under  the  Constitution,  the  fundamental 
basis  upon  which  they  rest,  and  their  division  between 
Congress  and  the  Commander-in-Chief.  We  have  now 
to  inquire  in  respect  of  their  extent  and  whether  they  are 
subject  to  any,  and,  if  any,  what  limitations. 

No  decision  of  the  Supreme  Court,  perhaps,  has  pro- 
voked more  earnest  expressions  of  approval,  upon  the 
one  hand,  and  of  disapproval,  upon  the  other,  than  that 
in  which  a  majority  of  the  judges  concurred  in  the  second 
Legal  Tender  case.  The  majority  of  the  Court,  in  a 
former  decision,  had  held  the  Legal  Tender  Acts  uncon- 
stitutional. We  are  all  familiar  with  the  history  of  the 
events  which  culminated  in  the  partial  reconstitution 
of  that  tribunal,  by  which  a  majority,  denying  the 
validity  of  these  acts,  became  a  majority,  affirming  their 
validity.  I  am  one  of  those  who  thoroughly  approve  the 
later  decision.  It  is  one  of  the  great  legal  chapters  in 
the  history  of  constitutional  development,  which  re- 
counts the  progressive  steps  by  which  the  theory  of  a 
Federation  of  states  has  been  absorbed  in  the  realiza- 
tion of  a  Nation.  It  is  not  only  a  model  of  clear  judicial 
reasoning,  but  a  superb  example  of  that  judicial  states- 
manship of  which  the  unique  powers  exercised  by  the 
Supreme  Court  have  furnished  many  instances. 


WAR  POWERS:    EXTENT  AND  LIMITATIONS          93 

In  the  course  of  the  opinion  written  by  Mr.  Justice 
Strong,  it  is  said : 

"It  is  not  to  be  denied  that  acts  may  be  adapted  to  the  exercise 
of  lawful  power,  and  appropriate  to  it,  in  seasons  of  exigency  which 
would  be  inappropriate  at  other  times." 

Attention  is  then  directed  to  the  fact  that  at  the  time 
Congress  attempted  to  make  treasury  notes  a  legal 
tender,  the  country  was  in  the  midst  of  a  civil  war 
which  threatened  the  overthrow  of  the  government  and 
the  destruction  of  the  Constitution.  The  public  trea- 
sury was  empty,  the  credit  of  the  government  well  nigh 
exhausted.  Specie  payment  had  been  suspended.  Tax- 
ation was  inadequate  to  pay  interest  on  the  debt  already 
incurred,  and  it  was  impossible  to  await  the  collection  of 
additional  taxes.  The  armies  were  unpaid  to  the  extent 
of  many  millions  of  dollars.  Trade  was  threatened  with 
paralysis.  Foreign  credit  was  gone,  and  confidence  in 
the  ability  of  the  general  government  to  save  the  Union 
and  itself,  hung  trembling  in  the  balance.  It  was  at 
such  a  crisis  in  our  affairs,  and  under  such  conditions 
of  compelling  necessity,  that  Congress  passed  the  Legal 
Tender  Acts.  As  already  stated,  the  action  of  Congress, 
having  been  first  annulled,  was  then  upheld.  Mr. 
Justice  Strong,  in  passing  upon  the  question,  after  re- 
citing the  facts  just  stated,  said: 

"Now,  if  it  were  certain  that  nothing  else  would  have  supplied 
the  absolute  necessities  of  the  Treasury,  that  nothing  else  would 
have  enabled  the  government  to  maintain  its  armies  and  navy,  that 
nothing  else  would  have  saved  the  government  and  the  Constitution 
from  destruction,  while  the  Legal  Tender  Acts  would,  could  any  one 
be  bold  enough  to  assert  that  Congress  transgressed  its  powers?  Or 
if  these  enactments  did  work  these  results,  can  it  be  maintained  now 


94      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

that  they  were  not  for  a  legitimate  end,  or  'appropriate  and  adapted 
to  that  end',  in  the  language  of  Chief  Justice  Marshall?  That  they 
did  work  such  results  is  not  to  be  doubted.  Something  revived  the 
drooping  faith  of  the  people ;  something  brought  immediately  to  the 
government's  aid  the  resources  of  the  nation,  and  something  enabled 
the  successful  prosecution  of  the  war,  and  the  preservation  of  the 
national  life.  What  was  it,  if  not  the  legal  tender  enactments?" 

The  sword  and  the  purse  are  the  two  indispensable 
requisites  of  war.  In  time  of  war,  when  the  life  of  the 
Nation  is  at  stake,  the  power  of  the  general  government 
to  sharpen  and  strengthen  the  one,  and  fill  the  other, 
and  utilize  them  both,  by  any  means  and  in  any  way 
the  authorized  agencies  of  that  government  may  deter- 
mine, cannot  admit  of  question;  and,  in  my  judgment, 
the  power  exists  without  any  restrictions  whatsoever, 
save  those  which  are  imposed  by  such  express  prohibi- 
tions of  the  Constitution,  and  such  fundamental  re- 
straints upon  governmental  action,  as  are  obviously  and 
clearly  intended  to  apply  at  all  times  and  under  all 
conditions. 

There  is,  in  this  field  of  governmental  activity,  there- 
fore, little,  if  any  occasion  to  employ  those  niceties  of 
logical  analysis  which  have  been  crystalized  into  canons 
of  statutory  and  constitutional  construction,  the  appli- 
cation of  which  tends  to  elucidate  the  meaning  of 
language  otherwise  obscure.  We  are  not  now  dealing 
with  those  powers  of  government  which  have  to  do 
with  our  ordinary  affairs,  and  whose  extension  or  re- 
striction is  important  only  as  it  bears  upon  the  comfort 
or  the  convenience  or  the  efficiency  of  society.  We  are 
dealing  with  those  vital  powers,  the  employment  of 
which  may  become  essential  to  our  continued  existence 


WAR  POWERS:    EXTENT  AND  LIMITATIONS          95 

as  a  people.  It  is  manifest  that  in  determining  the  ex- 
tent of  such  powers  as  these,  we  shall  be  justified  in 
making  assumptions  and  indulging  in  constructions 
which  could  not  be  tolerated  in  respect  of  normal  mat- 
ters. We  may  safely  deny  to  the  general  government 
indifferent  powers,  or  even  important  powers,  if  they 
concern  only  our  ordinary  relations  with  one  another; 
but  to  deny  to  the  general  government  any  power  essen- 
tial to  the  preservation  of  the  Nation,  is  to  gamble  with 
the  forces  of  life  and  death,  and  to  court  irreparable 
disaster.  The  Constitution  looks  to  an  enduring  Repub- 
lic and  a  perpetual  Union  made  "more  perfect."  This 
the  Framers  intended,  and  for  this  many  thousands  of 
brave  men  have  perished.  To  hold  that  men  may  be 
called  upon  to  die  for  these  ends,  but  that  the  general 
government  lacks  any  conceivable  power  to  attain  them 
by  means  which  will  entail  other  and  lesser  sacrifices, 
would  be  to  convert  the  Constitution  from  a  charter  of 
human  liberty  into  a  deadly  ambush.  No  such  ghastly 
paradox  can  be  admitted.  The  powers  of  the  general 
government  are  completely  adequate.  If  the  Republic 
shall  ever  fall — if  our  people  shall  ever  be  conquered  by 
a  foreign  foe — if  the  Union  shall  ever  be  destroyed — it 
will  be  because  we  lack  the  will  or  the  strength  to  fight, 
and  not  because  our  government  lacks  authority  to 
utilize  every  resource  of  the  Nation  for  its  preservation. 
If,  however,  it  should,  unfortunately,  transpire  that 
there  are  some  things,  the  doing  of  which  should  become 
vital  to  the  successful  prosecution  of  a  future  war, 
but  which,  under  some  contracted  view  of  national 
power,  are  held  to  lie  within  the  restraints  of  the  Con- 
stitution, we  may  be  confronted  with  the  alternative  of 


96      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

violating  the  Constitution,  or  sacrificing  the  Republic. 
In  that  unhappy  event,  we  must,  of  course,  determine 
which  is  the  more  important  to  be  saved.  I  have  as 
much  reverence  for  the  Constitution  as  anybody,  and 
I  should  be  as  loath  as  any  one  to  disregard  its  provi- 
sions, but,  I  suspect,  in  exercising  my  choice,  I  should 
be  greatly  influenced  by  the  reflection  that  a  fractured 
Constitution,  however  undesirable,  would  be  a  small 
disaster  compared,  for  example,  with  a  German  victory! 
And  while  I  have  said  this — and  while  I  am  sure  no  lover 
of  his  country  could  say  less  than  this — it  is  said  for  the 
sake  of  emphasis,  rather  than  for  the  purpose  of  inti- 
mating the  possibility  of  such  an  alternative.  On  the 
contrary,  the  power  of  national  self-preservation  is 
implicit  in  every  line  and  letter  of  the  Constitution, 
since  the  continued  existence  of  that  instrument  is 
wholly  dependent  upon  the  continued  existence  of  the 
Nation  whose  Constitution  it  is.  I  repeat  and  apply  the 
words  of  President  Lincoln,  in  his  letter  to  A.  G.  Hodges, 
April  8,  1864:  "I  felt  that  measures,  otherwise  uncon- 
stitutional, might  become  lawful  by  becoming  indis- 
pensable to  the  preservation  of  the  Constitution  through 
the  preservation  of  the  Union." 

The  power  to  declare  war  includes  every  subsidiary 
power  necessary  to  make  the  declaration  effective.  It 
does  not  mean  power  to  wage  war  feebly,  with  restricted 
means  or  limited  forces.  It  means  the  power  to  proceed 
to  the  last  extremity — to  call  to  the  service  of  the 
Nation  every  vestige  of  property  and  every  drop  of 
blood  in  the  land.  It  is  a  power  that,  once  invoked, 
admits  of  no  limitations — tolerates  no  qualifications — 
except  such  as  are  of  a  more  vital  character  than  the 


WAR  POWERS:    EXTENT  AND  LIMITATIONS          97 

imperious  necessity  with  which  they  compete ;  for  since 
defeat  may  entail  the  loss  of  all  that  a  free  people  hold 
dear,  a  people  worthy  to  be  free  can  be  supposed  to 
intend  no  otherwise  than  that,  if  all  must,  indeed,  be 
lost,  the  sacrifice  shall  follow  a  stern  resistance  and  an 
exercise  of  power  which  recognizes  physical  limitations 
alone. 

John  Quincy  Adams,  speaking  of  the  war  power,  said : 
"This  power  is  tremendous ;  it  is  strictly  constitutional ; 
but  it  breaks  down  every  barrier  so  anxiously  erected 
for  the  protection  of  liberty,  of  property  and  of  life." 

Our  government  was  created  for  the  problems  of  war, 
as  well  as  for  those  of  peace,  and  it  possesses  powers 
appropriate  for  either  state.  Having  no  relation  to  the 
conditions  of  peace,  the  war  powers,  at  such  a  time,  are 
wholly  subordinate  to  the  powers  of  peace — not  effaced, 
but  lying  dormant  and  potential.  In  time  of  war,  the 
situation,  in  many  respects,  is  reversed.  As  the  highest 
duty  of  the  Nation  is  self-preservation,  the  rights  of 
peace  must  then  be  held  in  subjection  to  the  necessities 
of  war.  This  does  not  result  in  the  suspension  of  the 
Constitution,  as  some  have  petulantly  suggested,  but 
it  may  result  in  a  suspension  of  the  constitutional  rights 
of  the  individual,  because  they  conflict  with  the  para- 
mount powers  of  war.  It  is  difficult  to  point  out,  in 
advance,  precisely  which  of  these  rights  may  be  thus 
affected,  or  the  extent  of  the  interference,  since  the 
faculty  of  anticipation  is  limited.  In  a  general  way  it 
may  be  said  that  as  necessity  is  the  occasion  of  the  inter- 
ference, it  is  also  the  standard  by  which  the  extent  of  it 
is  to  be  determined.  Whenever,  therefore,  the  enforce- 
ment of  these  constitutional  guaranties  will  interfere 


98      CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

with  the  successful  prosecution  of  the  war — will  put 
an  obstacle  in  the  way  of  the  fighting  forces  of  the 
Nation,  or  lessen  their  fighting  ability — individual  right 
must  yield  to  the  general  and  superior  right  of  national 
defense.  When  the  powers  of  war  and  the  rights  of 
peace  become  irreconcilable,  both  cannot  stand,  and  it 
requires  no  argument  to  demonstrate  that  in  such  case 
the  rights  of  the  individual,  rather  than  the  common 
welfare,  must  be  sacrificed.  Solus  populi  suprema  est 
lex.  Except,  however,  as  an  assertion  of  these  rights 
may  conflict  with  the  operation  of  the  war  powers,  they 
are  still  in  full  force,  to  be  invoked  by  the  citizen  and 
enforced  by  the  courts,  in  war  as  completely  as  in  peace. 
But  individual  privilege  and  individual  right,  however 
dear  or  sacred,  or  however  potent  in  normal  times,  must 
be  surrendered  by  the  citizen  to  strengthen  the  hand  of 
the  government  lifted  in  the  supreme  gesture  of  war. 
Everything  that  he  has,  or  is,  or  hopes  to  be — property, 
liberty,  life — may  be  required.  In  time  of  peace,  an 
attempt  to  interfere  with  the  least  of  these  would  be, 
and  ought  to  be,  resisted  to  the  utmost.  In  time  of  war, 
when  the  Nation  is  in  deadly  peril,  every  freeman,  who 
prizes  the  boon  of  enduring  liberty,  will  lay  them  all, 
freely  and  ungrudgingly,  upon  the  sacrificial  altar  of 
his  country. 

And  so,  freedom  of  speech  may  be  curtailed  or  denied, 
in  order  that  the  morale  of  the  population  and  the  fight- 
ing spirit  of  the  army  may  not  be  broken  by  the 
preachers  of  sedition;  freedom  of  the  press  interfered 
with,  in  order  that  our  military  plans  and  movements 
may  not  be  made  known  to  the  enemy;  deserters  and 
spies  put  to  death,  without  indictment  or  trial  by  jury; 


WAR  POWERS:   EXTENT  AND  LIMITATIONS          99 

private  mills  and  mines  taken  over  and  operated  by  the 
government;  supplies  requisitioned;  property  of  alien 
enemies  lawfully  in  the  country  and  normally  under  the 
protection  of  the  Constitution,  seized  without  judicial 
process  and  converted  to  the  public  use  without  "due 
process  of  law";  food  supplies,  fuel,  raw  materials,  use- 
ful in  the  manufacture  of  requisites  of  war,  conserved, 
or  their  production  stimulated,  by  price  fixing  or  regu- 
lation of  consumption;  transportation  systems,  tele- 
graph and  telephone  lines  taken  possession  of  and 
operated  by  the  national  government ;  and  a  multitude 
of  other  powers,  the  exercise  of  which  in  time  of  peace 
would  be  intolerable  and  inadmissible,  may  be  employed, 
by  or  under  the  direction  of  Congress,  to  meet  the 
necessities  and  emergencies  of  war. 

Not  only  are  the  ordinary  and  normal  rights  of  the 
individual  thus  gravely  affected,  but  the  line,  which  in 
time  of  peace  separates  the  national  from  the  state 
powers,  is  thrust  aside  by  the  enactment  of  national 
statutes  postponing  rights  and  suspending  remedies 
under  state  laws,  where  their  immediate  enforcement 
might  interfere  with  military  operations.  Thus,  in 
order  that  persons  in  the  military  service  of  the  United 
States  may  not  be  prejudiced  or  injured  in  their  civil 
rights  during  their  term  of  service,  and  to  enable  them 
to  devote  their  entire  energy  to  the  military  needs  of  the 
Nation,  Congress  has  enacted  that,  during  the  con- 
tinuance of  the  present  war,  certain  legal  proceedings 
and  transactions  affecting  such  persons,  shall  be  sus- 
pended. Under  this  act,  for  example,  before  judgment 
by  default  can  be  entered,  the  plaintiff  must  file  an 
affidavit  showing  that  the  defendant  is  not  in  the  mili- 


100    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

tary  service,  or,  if  unable  to  do  that,  an  affidavit  to  the 
effect  that  defendant  is  in  the  service  or  that  plaintiff 
is  unable  to  determine  the  fact  either  way.  If  defendant 
be  in  the  service,  or  that  fact  be  left  undetermined, 
counsel  for  the  absent  defendant  must  be  appointed  to 
protect  his  interests. 

If  judgment  shall  be  finally  rendered  against  defend- 
ant, and  it  afterward  appear  that  he  was  prejudiced  by 
reason  of  his  military  service  in  making  his  defense, 
judgment  may  thereafter  be  set  aside  in  the  manner 
and  upon  the  conditions  provided  in  the  act.  Provi- 
sion is  also  made  by  which  proceedings,  in  any  action 
to  which  a  person  in  military  service  is  a  party,  may  be 
stayed  during  the  period  of  service  and  for  a  limited 
time  thereafter.  Courts  in  which  such  actions  are 
brought  are  also  authorized  to  stay  execution  of  judg- 
ment and  to  vacate  or  stay  attachments  or  garnish- 
ments. Eviction  or  distress  is  forbidden  during  military 
service  except  upon  leave  of  Court  where  the  agreed 
rent  does  not  exceed  $50  per  month,  and  where  the 
premises  are  occupied  chiefly  for  dwelling  purposes  by 
dependents  of  the  defendant.  jThese  provisions,  so  far 
as  they  are  applicable  to  the  state  courts,  would,  of 
course,  be  entirely  beyond  the  peace  powers  of  Congress, 
but  are  justified  under  its  war  powers,  since,  by  pre- 
venting the  diversion  of  men  in  military  service  from 
their  military  duties,  the  efficiency  of  the  army  is 
materially  increased. 

By  another  act  it  is  made  an  offense  to  set  up  or  keep 
certain  disorderly  houses  in  proximity  to  military 
camps,  etc.,  within  zones  established  by  the  Secretary 
of  War,  a  subject  which  in  time  of  peace  falls  wholly 


WAR  POWERS:    EXTENT  AND  LIMITATIONS         IOI 

under  the  police  powers  of  the  state.  The  act  has  been 
attacked  as  an  invasion  of  these  reserved  powers  of  the 
state,  but  has  been  sustained  as  a  legitimate  exercise 
of  the  war  powers.1 

The  power  to  declare  war  carries  with  it,  by  necessary 
implication,  the  power  to  employ  any  appropriate 
means  to  render  the  declaration  effective,  that  is,  to 
wage  war  speedily  and  victoriously.  It  is  apparent 
that  good  order,  morality,  sobriety,  health  and  sub- 
ordination not  only  contribute  to  the  well-being  of  the 
army,  but  are  vitally  essential  to  its  efficiency;  hence 
anything  which  adds  to,  or  tends  toward  preserving, 
these  qualities,  promotes  the  success  of  our  armies; 
and  it  follows  that  Congress  may,  under  its  war  powers, 
command  whatever  will  effect  or  aid  in  effecting  these 
results,  or  forbid  whatever  will  interfere  with  their 
attainment.  The  power  which  is  exercised  by  Congress 
in  this  instance  is  not  the  police  power,  since  it  is  not 
exercised  to  the  end  and  for  the  ultimate  purpose  of 
safeguarding  the  health  or  morals  of  the  persons 
affected,  but  it  is  exercised  as  a  means  to  the  end,  and 
for  the  ultimate  purpose,  of  increasing  the  efficiency 
of  the  fighting  forces  of  the  Nation. 

The  war  powers  are  wholly  distinct  from  the  police 
powers,  although  their  exercise  may,  and  frequently 
does,  bring  about  similar  results. 

Perhaps  no  statute  passed  by  Congress  during  the 
present  war  was  more  strenuously  opposed,  in  certain 
of  its  features,  during  its  consideration,  or  more  bitterly 
assailed  since  its  enactment,  than  the  so-called  "Espi- 
onage Act."  To  my  mind,  however,  no  statute  could 

1  247  Red.  Rep.  362. 


102    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

be  more  plainly  defensible,  for  if  the  utilization  of  the 
man  power  and  resources  of  the  country,  to  the  utmost 
limit,  be  justified,  in  order  to  win  the  war,  surely  legis- 
lation which  seeks  to  punish  and  prevent  false  state- 
ments calculated  and  intended  to  obstruct  and  delay 
or  defeat  the  accomplishment  of  that  end,  must  be 
sound  and  righteous.  Instead  of  going  too  far,  the  Act 
did  not  go  far  enough.  In  time  of  peace,  we  may  treat 
scurrilous  and  abusive  criticisms  of  our  form  of  govern- 
ment, our  Constitution  and  our  institutions  with  con- 
tempt alone;  but  in  time  of  war — when  every  disloyal 
word,  every  profane  criticism  of  our  aims,  our  motives, 
our  uniform,  our  flag,  may,  by  delaying  preparations 
or  reducing  the  fighting  will  of  the  people,  contribute 
to  the  sacrifice  of  men  upon  the  battlefields — an  un- 
bridled tongue  may  be  as  dangerous  as  a  wicked  hand. 
The  provisions  of  the  original  Espionage  Act  were  ex- 
panded and  strengthened  by  the  amendatory  act  of 
May  1 6,  1918,  by  which  it  is  made  an  offense,  severely 
punishable,  to  say  or  do  anything,  except  by  way  of 
bona  fide,  and  not  disloyal,  advice,  to  an  investor  or 
investors,  with  intent  to  obstruct  the  sale  by  the  United 
States  of  bonds  or  other  securities  of  the  United  States, 
or  the  making  of  loans  by  or  to  the  United  States;  or 
to  cause  or  incite,  or  attempt  to  cause  or  incite  insub- 
ordination, etc.,  in  the  military  forces  of  the  United 
States;  or  obstruct  or  attempt  to  obstruct  recruiting 
or  enlisting;  or  to  wilfully  utter,  print,  write  or  publish 
any  disloyal,  scurrilous  or  abusive  language  about  the 
form  of  government  or  Constitution  of  the  United 
States,  or  the  military  or  naval  forces,  or  the  flag  of  the 
United  States,  or  the  uniform  of  the  army  or  navy,  or 


WAR  POWERS:    EXTENT  AND  LIMITATIONS         103 

any  language  intended  to  bring  either  of  these  into 
contempt,  scorn,  contumely  or  disrepute;  or  to  utter, 
print,  write,  or  publish  any  language  intended  to  incite, 
provoke  or  encourage  resistance  to  the  United  States, 
or  to  promote  the  cause  of  its  enemies;  or  wilfully  display 
the  flag  of  any  foreign  enemy;  or,  by  language  spoken 
or  written,  to  urge,  incite  or  advocate  any  curtailment 
of  the  production  of  any  thing  or  product  essential  to 
the  prosecution  of  the  war,  with  intent  thereby  to 
cripple  or  hinder  the  prosecution  of  the  war  by  the 
United  States ;  or  to  advocate,  teach,  defend  or  suggest 
the  doing  of  any  of  the  acts  above  enumerated.  These 
provisions  are  comprehensive  and  impressive.  They 
apparently  leave  no  loophole  of  escape  for  the  disloyal 
defamer  of  his  country  or  its  defenders,  or  the  disloyal 
vilifier  of  the  elementary  things  which  symbolize  its 
sovereignty,  or  for  the  aider  or  abetter  of  the  enemy. 
They  carry  stern  assurance  that  the  Nation  intends  to 
protect  itself  against  treachery  at  home,  no  less  than 
against  force  from  abroad. 

The  difficulty  with  the  original  act  was  that  it  applied 
only  to  false  reports  and  statements  made  with  intent 
to  interfere  with  our  military  operations  or  success. 
The  new  law  includes  disloyal  utterances  designed  to  be- 
little and  defile  our  institutions,  the  effect  of  which  upon 
the  morale  of  the  people,  while  more  insidious,  may  be 
none  the  less  serious.  Criticisms,  levelled  against  the 
act  on  the  ground  that  it  unduly  curtails  freedom  of 
speech  and  of  the  press,  are  wholly  without  justification. 
Criticism  of  the  administration  of  government,  of  the 
conduct  of  the  war,  of  the  action,  or  lack  of  action,  on 
the  part  of  the  President  or  any  lesser  official,  is  not  for- 


104    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

bidden.  Such  criticism,  if  truthful  and  timely  and  sug- 
gestive of  appropriate  remedies,  may  be  greatly  helpful. 
The  act  is  directed  against  opprobrious  language  re- 
specting matters  which  lie  at  the  foundations  of  our 
national  faith.  Utterances  of  this  character  are  repre- 
hensible and  deserving  of  unqualified  condemnation  at 
all  times  and  under  all  circumstances — they  are  pun- 
ished under  state  laws  whenever  they  tend  to  create  a 
breach  of  the  peace — but  in  time  of  war  they  are  essen- 
tially treasonable,  and  should  be  visited  with  social 
ostracism  and  severely  substantial  punishment.  Any 
course  less  firm  will  not  only  encourage  the  disloyal  but 
dishearten  those  who  keep  the  faith  in  spirit  and  in  fact. 
The  order  of  President  Lincoln,  made  under  the  Act  of 
1863,  suspending  the  privilege  of  the  writ  of  habeas  cor- 
pus as  to  prisoners  of  war,  spies,  or  aiders  or  abetters  of 
the  enemy,  may  be  read  with  profit  in  this  connection 
by  those  who  condemn  the  present  act  as  unnecessarily 
drastic.  He  there  denned  the  aider  or  abetter  of  the 
enemy  as  "one  who  seeks  to  exalt  the  motives,  character, 
and  capacity  of  armed  traitors — overrates  the  success 
of  our  adversaries  or  underrates  our  own — who  seeks 
false  causes  of  complaint  against  our  government  or 
inflames  party  spirit  among  ourselves  and  gives  to  the 
enemy  that  moral  support  which  is  more  valuable  to 
them  than  regiments  of  soldiers  or  millions  of  dollars." 
The  constitutionality  of  the  Conscription  Act  passed 
by  Congress  under  the  power  to  "raise  and  support 
armies"  was  attacked,  before  its  passage,  in  Congress, 
and  has  been  attacked,  since  its  enactment,  in  the 
courts.  The  legislation  was  assailed  on  the  grounds, 
among  others,  that  compulsory  military  service  con- 


WAR  POWERS:    EXTENT  AND  LIMITATIONS         105 

stituted  involuntary  servitude,  and  therefore  violated 
the  Thirteenth  Amendment ;  that  no  power  to  provide 
for  such  service  was  granted  by  the  Constitution ;  that 
the  act  was  invalid  in  so  far  as  it  authorized  the  Presi- 
dent to  draft  into  the  armies  of  the  United  States,  for 
service  abroad,  members  of  the  National  Guard;  and 
that  there  was  no  constitutional  warrant  for  sending 
citizens  to  serve  on  foreign  soil.  The  contention  re- 
specting involuntary  servitude  was  so  manifestly  with- 
out merit,  that  it  was  speedily  disposed  of  by  the 
Supreme  Court  as  being  a  "contention  .  .  .  refuted 
by  its  mere  statement."  The  Thirteenth  Amendment 
was  directed  against  slavery  or  peonage,  or  other  com- 
pulsory service  involving  some  form  or  degree  of  slav- 
ery. It  was  never  meant  to  include,  and,  of  course, 
clearly,  does  not  include,  the  constraint  of  military 
service  for  the  common  defense.  Such  service  simply 
recognizes  and  discharges  a  reciprocal  obligation  im- 
plicit in  citizenship.  It  does  not  constitute  the  servile 
subjection  of  a  bondsman  to  a  master,  but  the  supreme 
requital  of  the  freeman  to  the  country  which  safe- 
guards his  liberties. 

The  claim  that  the  Constitution  contains  no  grant  of 
power  to  provide  for  compulsory  military  service,  and 
hence  the  act  is  invalid,  is  equally  untenable.  Chief 
Justice  White,  in  the  selective  draft  cases,2  disposed  of 
it  in  a  few  sentences,  as  terse  as  they  are  conclusive: 

"But  the  proposition  simply  denies  to  Congress  the  power  to  raise 
armies  which  the  Constitution  gives.  .  . 

"Further,  it  is  said,  the  right  to  provide  is  not  denied  by  calling 
for  volunteer  enlistments,  but  it  does  not  and  cannot  include  the 

*  245  U.  S.  366. 


106    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

power  to  exact  enforced  military  duty  by  the  citizen.  This,  however, 
but  challenges  the  existence  of  all  power,  for  a  governmental  power 
which  has  no  sanction  to  it  and  which  therefore  can  only  be  exer- 
cised provided  the  citizen  consents  to  its  exercise  is  in  no  substantial 
sense  a  power.  .  .  It  may  not  be  doubted  that  the  very  concept-ion  of 
a  just  government  and  its  duty  to  the  citizen  includes  the  reciprocal 
obligation  of  the  citizen  to  render  military  service  in  case  of  need  and 
the  right  to  compel  it." 

The  power  to  compel  military  service  by  conscription 
is  one  which  belongs  to  all  independent  nations  as  in- 
herent in  sovereignty  and  as  essential  to  self-preserva- 
tion. It  is  impossible  to  conclude  that  the  framers  of 
the  Constitution  intended  to  withold  from  the  national 
government  a  power  so  vital.  Nothing  short  of  a  pre- 
cise prohibition  in  the  Constitution  could  justify  such 
a  conclusion.  The  power  to  raise  armies  must  include 
every  well-recognized  method  in  use  at  the  time  the 
Constitution  was  adopted;  and  conscription  had  not 
only  been  freely  employed  by  all  foreign  nations,  but 
had  been  resorted  to  by  the  colonists,  and  earnestly 
recommended  more  than  once  by  the  Federal  Congress 
to  the  several  states  as  a  means  to  fill  up  their  quotas. 
The  precedents  of  our  own  history,  since  the  adoption 
of  the  Constitution,  all  favor  the  existence  of  the  power. 
Conscription  was  adopted  as  a  means  to  raise  armies 
upon  both  sides  during  the  Civil  War  and  sustained  by 
the  courts,  both  north  and  south.  The  Supreme  Court 
of  Pennsylvania,  in  passing  upon  the  Conscription  Act 
of  the  Civil  War,  uses  language  so  pertinent  and  forceful 
that  I  cannot  forbear  making  two  or  three  brief  ex- 
tracts : 

"We  cannot  conceive  of  a  nation  without  the  inherent  power  to 
carry  on  war.  The  defense  of  person  and  property  is  a  right  belong- 


WAR  POWERS:    EXTENT  AND  LIMITATIONS         107 

ing  by  nature  to  the  individual,  and  to  every  individual,  and  is  not 
taken  away  by  association.  It,  therefore,  belongs  to  individuals  in 
their  collective  capacity,  whenever  thus  threatened  or  assailed.  The 
Constitution,  following  the  natural  right,  vests  the  power  to  declare 
war  in  Congress,  the  representatives  of  the  people.  It  is  noticeable 
that  the  Constitution  recognizes  this  right  as  pre-existing,  for  it  says, 
to  declare  war,  which  presupposes  the  right  to  make  war.  The  power 
to  declare  war  necessarily  involves  the  power  to  carry  it  on,  and  this 
implies  the  means,  saying  nothing  now  of  the  express  power  'to  raise 
and  support  armies',  as  the  provided  means.  .  .  The  right  to  the 
means  carries  all  the  means  in  possession  of  the  nation.  Every  able- 
bodied  man  is  at  the  call  of  the  government,  for  assuredly  in  making 
war,  as  there  is  no  limit  to  the  necessity,  there  can  be  no  limit  to 
the  force  to  be  used  to  meet  it.  Therefore,  if  the  emergency  require 
it,  the  entire  military  force  of  the  nation  may  be  called  into  service. 
But  the  power  to  carry  on  war,  and  to  call  the  requisite  force  into 
service,  inherently  carries  with  it  the  power  to  coerce  or  draft.  A 
nation  without  the  power  to  draw  forces  into  the  field,  in  fact  would 
not  possess  the  power  to  carry  on  war.  The  power  of  war,  without 
the  essential  means,  is  really  no  power;  it  is  a  solecism.  Voluntary 
enlistment  is  founded  in  contract.  A  power  to  command  differs 
essentially  from  a  power  to  contract.  The  former  flows  from  author- 
ity; the  latter  from  assent.  The  power  to  command  implies  a  duty 
to  obey,  but  the  essential  element  of  contract  is  freedom  to  assent  or 
dissent.  It  is  clear,  therefore,  that  the  power  to  make  war,  without 
the  power  to  command  troops  into  the  field,  is  impotent — in  point 
of  fact,  is  no  governmental  power,  because  it  lacks  the  authority  to 
execute  itself."  .  .  . 

"But  by  so  much  more  that  the  life  of  a  nation  is  greater  than  the 
life  of  an  individual,  which  may  be  taken  to  preserve  it,  so  much 
greater  is  the  high  purpose  of  raising  an  army  to  preserve  the  nation 
than  the  protection  of  the  rights  of  the  individual.  The  minor  pur- 
pose, when  urged  as  a  reason  for  the  limitation,  cannot  therefore  be 
allowed  to  control  the  meaning  of  the  plain  language  used  for  the 
major  purpose.  Then  the  inherent  powers  of  a  nation  to  make  war 
for  self-preservation,  carrying  with  them  all  the  means  of  making 
war  effective,  the  express  power  to  declare  war  and  to  raise  and  sup- 


108    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

port  armies,  coupled  with  the  express  power  to  pass  all  laws  necessary 
and  proper  to  carry  those  powers  into  effect,  all  unite  in  sustaining 
the  power  to  raise  armies  by  coercion,  and  these  are  in  turn  sustained 
by  the  high,  vital,  and  essential  purposes  of  the  grant."  3 

The  objection  that  the  provisions  of  the  act  with 
reference  to  the  state  militia  are  invalid,  was  based  upon 
the  contention  that,  as  the  Constitution  authorizes 
Congress  "to  provide  for  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  to  suppress  insurrections 
and  repel  invasions"  the  power  cannot  be  exercised  for 
other  than  the  enumerated  purposes.  It  was  urged  that, 
by  the  act  in  question,  Congress  had  undertaken  to 
conscript  the  militia  for  purposes  beyond  those  speci- 
fied in  the  Constitution.  The  answer  to  this,  however, 
is  that  Congress  did  not  undertake  to  call  forth,  or 
conscript,  the  state  militia  at  all.  The  act  provides  for 
the  draft  of  the  members  of  the  National  Guard — which 
is,  of  course,  the  organized  militia — who  will,  by  an- 
other provision  of  the  act,  "from  the  date  of  their  draft 
stand  discharged  from  the  militia."  The  draft,  there- 
fore, is  not  of  the  state  militia  as  such,  but  of  the  indi- 
viduals who  for  the  time  being  happen  to  compose  the 
militia.  It  has  become  a  commonplace  of  constitu- 
tional construction  that,  whenever  a  power  is  conferred 
upon  Congress,  the  selection  of  the  means  by  which  the 
power  is  to  be  effectuated  is  a  matter  wholly  within  the 
discretion  of  that  body,  and  any  means  appropriate  to 
the  end,  and  not  prohibited  by  the  Constitution,  may 
be  adopted.  The  power  to  raise  armies,  therefore, 
carries  with  it  the  power  to  do  so  by  any  appropriate, 
unprohibited  means.  The  fact  that  a  person  is  enrolled 

a  45  Pa.  238. 


WAR  POWERS:    EXTENT  AND  LIMITATIONS         109 

in  the  state  militia  does  not  affect  his  obligation  as  a 
citizen  to  render  military  service  to  the  United  States. 
This  was  true  under  the  old  Constitution,  and  it  is  more 
emphatically  true  since  the  Fourteenth  Amendment, 
by  which  national  citizenship  is  affirmatively  declared, 
independently  of  and  paramount  to  state  citizenship. 
As  well  said  by  Judge  Speer  in  a  recent  case:  "Congress 
may  summon  to  its  army  thus  authorized  every  citizen 
of  the  United  States.  Since  it  may  summon  all,  it  may 
summon  any."  4  A  citizen  is  not  beyond  the  arm  of  the 
general  government  because  he  is  a  member  of  the  state 
militia,  any  more  than  because  he  is  a  policeman.  He 
is  summoned  not  as  a  militiaman  or  as  a  policeman,  but 
as  and  because  he  is  a  citizen  of,  and  owes  primary 
allegiance  to,  the  Nation. 

The  power  to  send  citizens  composing  our  military 
forces  into  foreign  countries  is  established  by  the  pre- 
cedents of  our  history  and  the  decisions  of  our  courts. 
Our  troops,  even  in  time  of  peace,  have  carried  the  flag 
across  the  Pacific  to  China;  and  our  victorious  armies 
have  gone  into  Tripoli,  Mexico,  Cuba,  Porto  Rico,  and 
the  Philippines.  The  present  draft  law  has  been  sus- 
tained against  all  these  and  other  attacks,  by  every 
court  in  which  the  matter  has  arisen,  including  the 
Supreme  Court  of  the  United  States,  and  the  question 
of  its  validity  may  be  regarded  as  having  been  conclu- 
sively and  permanently  set  at  rest. 

While  Congress  has  no  power  to  directly  interfere 
with,  or  curtail  the  war  powers  of  the  Commander-in- 
Chief,  that  body  may  supplement  and  enlarge  such 
powers  or  may  create  occasions  for  their  exercise,  as  well 

4  243  Fed.  997. 


1 10    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

as  for  the  exercise  of  the  executive  powers  of  the  Presi- 
dent. An  illustration  of  the  separate  but  dependent 
functions  of  these  several  governmental  agencies,  is  af- 
forded by  the  provisions  respecting  the  state  militia. 
The  Constitution  devolves  upon  Congress  the  duty  to 
provide  for  calling  forth  the  militia  to  "execute  the  laws 
of  the  Union,  to  suppress  insurrections  and  repel  inva- 
sions." In  pursuance  of  this  provision,  Congress  has 
provided  that  in  case  of  invasion,  or  imminent  danger 
of  invasion  from  any  foreign  nation,  and  in  case  of 
rebellion,  etc.,  the  President  may  call  forth  such  num- 
ber of  the  militia  as  he  may  deem  necessary.  The  power 
thus  given  by  Congress  is  vested  in  the  President,  in 
his  capacity  as  such,  and  not  as  Commander-in-Chief. 
When,  however,  the  call  has  been  made,  and  the  militia 
are  in  the  actual  service  of  the  United  States,  the  con- 
stitutional functions  of  the  Commander-in-Chief  at  once 
supersede  the  executive  powers  of  the  President,  by 
virtue  of  that  clause  of  the  Constitution  which  makes 
him  Commander-in-Chief  of  the  state  militia,  when 
called  into  the  service  of  the  United  States. 

As  already  suggested,  no  war  powers  attach  to  the 
office  of  President  by  the  direct  force  of  the  Constitu- 
tion; but  the  President,  in  fact,  exerts  war  powers  of 
the  most  extensive  character,  since  he  is  charged  with 
the  duty  of  executing  or  overseeing  the  execution  of 
the  laws  made  by  Congress  in  pursuance  of  its  powers, 
whether  of  war  or  of  peace.  The  authority  of  the  Presi- 
dent, however,  is  wholly  dependent  upon  the  action  of 
Congress.  The  power  of  initiation  is  vested  in  the 
latter,  and  not  in  the  former,  the  more  or  less  prevalent 
opinion  to  the  contrary  notwithstanding.  In  fact,  with 


WAR  POWERS:    EXTENT  AND  LIMITATIONS        III 

reference  to  these  powers,  the  Executive  is  substan- 
tially what  Roger  Sherman,  in  the  Framers'  Convention, 
characterized  as  "Nothing  more  than  an  institution  for 
carrying  the  will  of  the  legislature  into  effect."  That 
the  burden  and  responsibility  of  initiation  rests  upon 
Congress  should  make  that  body  all  the  more  diligent 
and  prompt  to  act.  In  carrying  on  war,  the  Executive, 
both  as  President  and  Commander-in-Chief,  must  be 
given  a  free,  as  well  as  a  strong  hand.  The  contingencies 
of  war  are  limitless — beyond  the  wit  of  man  to  foresee. 
Vitally  critical  situations  may  suddenly  arise;  the 
country  may  be  encompassed  by  unexpected  dangers, 
which  must  be  faced  at  once;  confronted  with  grave 
and  serious  problems,  which  will  not  wait  for  deliber- 
ation, but  must  be  solved  by  immediate  action.  To 
rely  upon  the  slow  and  deliberate  processes  of  legisla- 
tion, after  the  situation  and  dangers  and  problems  have 
arisen,  may  be  to  court  danger — perhaps  overwhelming 
disaster.  In  recognition  of  this  necessity,  Congress  has 
already  enacted  legislation  conferring  upon  the  Presi- 
dent emergency  powers,  to  be  exerted  during  the  con- 
tinuance of  a  state  of  war,  of  the  most  far-reaching 
character.  It  is  impracticable  for  me  to  do  more  than 
enumerate,  in  general  terms,  some  of  these  provisions; 
but,  following  an  admirable  introduction  dealing  with 
the  war  powers  generally,  they  have  been  grouped  and 
analyzed,  with  explanatory  and  supplemental  notes, 
by  Major  J.  Reuben  Clark,  Jr.,  formerly  Solicitor  of 
the  Department  of  State,  and  published  by  the  gov- 
ernment in  a  volume  entitled  "Emergency  Legislation." 
Major  Clark  shows  that  this  legislation  authorizes  the 
Federal  Executive  (generally  the  President  directly)  to 


112    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

exercise  control  over,  or  take  possession  of,  or  title  to, 
private  property  by  (a)  confiscation,  (6)  requisition,  or 
(c)  regulation. 

The  powers  of  confiscation  extend  to  vessels  in  the 
ports  of  the  United  States,  where  there  is  a  failure  to 
comply  with  any  regulations  or  rules  issued,  or  orders 
given,  under  the  Espionage  Act;  or  where  the  destruc- 
tion or  injury  of  any  such  vessel  is  wilfully  caused  or 
permitted ;  or  where  the  use  of  such  vessel  is  knowingly 
permitted  as  a  place  of  resort  for  conspirators,  or  per- 
sons preparing  to  commit  any  offense  against  the  United 
States,  or  in  violation  of  treaties  or  obligations  of  the 
United  States  under  the  law  of  nations ;  and  to  vessels 
disposed  of  in  violation  of  certain  provisions  of  the 
Shipping  Board  Act.  The  power  of  confiscation  like- 
wise extends  to  arms,  munitions  of  war,  and  articles 
exported  or  attempted  to  be  exported  in  violation  of 
law,  or  whenever  there  is  probable  cause  to  believe  they 
are  being,  or  are  intended  to  be,  so  exported.  The 
President,  under  the  Espionage  Act,  is  given  compre- 
hensive power  to  forbid  the  exportation  of  articles  from 
the  United  States  whenever  he  shall  find  that  the  public 
safety  shall  so  require. 

The  term  "requisition,"  as  Major  Clark  points  out, 
includes  "the  taking  or  use  of  private  property  for  the 
belligerent  necessities  of  a  belligerent  government,"  and 
the  power  may  be  exercised  against  enemies  in  occupied 
enemy  territory,  and  against  citizens  in  domestic  ter- 
ritory. In  the  former  case,  the  power  is  governed  by 
the  principles  of  international  law,  and  in  the  latter 
case  by  the  domestic  law.  The  power  is  one  well 
known  and  frequently  exercised  in  our  own  history. 


WAR  POWERS:    EXTENT  AND  LIMITATIONS        113 

Major  Clark  divides  the  various  acts  of  Congress  into 
two  classes:  Those  where  the  power  of  requisition  is 
complete  and  those  where  it  is  incomplete. 

The  President  is  given  power  of  "complete  requisi- 
tion" in  the  case  of  distilled  spirits;  the  output  of  fac- 
tories in  which  ships  or  war  materials  are  built  or  pro- 
duced; contracts  for  building  or  purchasing  ships  or 
producing  war  materials,  where  the  power  is  to  modify 
or  cancel  any  such  contracts;  ships  constructed  or  in 
process  of  construction,  or  any  part  thereof,  or  the 
charter  of  such  ships;  food,  fuel,  and  other  supplies 
necessary  to  the  support  of  the  Army,  or  maintenance 
of  the  Navy,  or  for  the  common  defense,  together  with 
storage  facilities  for  such  supplies;  land  needed  for 
fortifications,  coast  defenses,  and  military  training 
camps,  aviation  purposes,  naval  purposes,  and  other 
military  uses.  Under  the  Food  Control  Act,  the  Presi- 
dent is  authorized  to  requisition,  by  judicial  proceed- 
ing, any  necessaries  which  have  been  hoarded,  the  same 
to  be  sold  as  the  Court  may  direct.  The  President  has 
likewise  been  authorized  to  take  over  the  possession 
and  title  of  all  vessels  within  the  jurisdiction  of  the 
United  States,  owned,  in  whole  or  in  part,  by  corpora- 
tions, citizens,  or  subjects  of  any  nation  with  which  the 
United  States  may  be  at  war. 

Under  the  head  of  "incomplete  requisitions"  the 
President  has  been  authorized  to  place  compulsory 
orders  with  manufacturers  of  materials  required  by  the 
government,  including  ships  and  war  materials;  and 
the  Secretary  of  War  has  been  authorized  to  place  com- 
pulsory preferential  orders  for  arms  or  munitions,  or 
necessary  supplies  or  equipment  for  the  Army.  The 


114    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

President  has  been  further  authorized,  when,  in  his 
opinion,  the  common  defense  will  be  better  provided  for, 
or  the  war  more  efficiently  prosecuted,  to  require  pro- 
ducers of  coal  and  coke  to  sell  their  products  only  to 
the  United  States,  through  an  agency  to  be  designated, 
such  agency  to  regulate  the  resale  of  such  coal  and  coke, 
and  the  prices  thereof,  and  to  establish  regulations  gov- 
erning methods  of  production,  shipment,  distribution, 
and  so  on.  Provision  has  also  been  made  for  the  requisi- 
tion of  the  use  of  plants  for  the  manufacture  of  muni- 
tions or  military  supplies,  or  of  ships  or  war  materials; 
or  for  the  building  of  ships,  or  manufacture  of  materials 
or  necessaries  for  the  support  of  the  Army,  or  mainte- 
nance of  the  Navy,  or  any  public  use  connected  with 
the  common  defense.  He  is  authorized  to  take  over 
plants  for  the  production  of  coal  and  coke ;  and  to  take 
possession  and  assume  control  of  any  system  or  systems 
of  transportation. 

Under  the  head  of  "powers  of  regulation"  he  is 
authorized  to  regulate,  by  a  system  of  licensing,  the 
importation,  manufacture,  storage,  mining  or  distribu- 
tion of  any  necessaries;  the  production  of  malt  or 
vinous  liquors  from  foods,  fruits,  food  materials  or 
feeds.  It  is  made  an  offense,  without  the  license  of  the 
President,  to  trade,  or  attempt  to  trade  with  the  enemy, 
or  an  ally  of  the  enemy,  or  to  transport  any  enemy  per- 
son, or  to  communicate  with  the  enemy.  He  is  author- 
ized to  regulate  dealings  in  wheat,  and  to  guarantee 
prices;  to  purchase,  store  and  sell  at  reasonable  prices 
flour,  meal,  beans,  potatoes,  etc.;  to  regulate  produc- 
tion, sale,  shipment,  distribution  and  apportionment  of 
coal  and  coke;  to  regulate  stock  exchanges,  and  to  fix 


WAR  POWERS:    EXTENT  AND  LIMITATIONS         115 

prices  for  wheat,  coal  and  coke,  and  for  storage,  and  for 
articles  made  under  requisitioned  foreign  patents;  to 
regulate  the  keeping  of  records  of  clearing-houses  and 
in  other  cases.  He  is  authorized  to  regulate  exports ;  to 
allow,  under  certain  limitations,  the  importation  of  tick 
infested  cattle;  to  control  the  disposition  of  vessels 
owned  by  American  citizens;  to  regulate  imports;  to 
supervise  the  press  and  censor  all  private  communica- 
tions ;  to  require  disclosures  of  enemy,  or  ally  of  enemy, 
officials,  directors  or  stockholders,  and  disclosures  by 
holders  and  custodians  of  property  belonging  to 
enemies. 

In  addition  to  all  this  he  is  authorized  to  make  many 
other  regulations;  to  institute  investigations  into  the 
food  supply,  car  service,  clearing-houses,  stock  ex- 
changes, and  a  variety  of  other  matters. 

It  will  thus  be  seen  that  Congress  has  invested  the 
President  with  virtual  dictatorship  over  an  exceedingly 
wide  range  of  subjects  and  activities — a  grant  of  power 
which  no  free  people  would  tolerate  under  normal  con- 
ditions, but  which,  under  the  great  emergency  of  war, 
has  properly  received  unhesitating  popular  approval. 
The  mere  recital  of  this  legislation,  bare  and  incomplete 
as  it  is,  presents  to  the  imagination  a  deeply  impressive 
picture  of  moral  solidarity,  stability  and  self-restraint, 
which  affords  comforting  assurance  of  the  enduring 
quality  of  democratic  institutions,  and  bears  eloquent 
and  convincing  testimony  to  the  determination  of  the 
country  to  consummate  the  high  adventure  upon  which 
it  had  entered,  regardless  of  the  restraints,  losses  or 
sacrifices  that  might  be  entailed. 


CHAPTER  VI 
THE  TREATY-MAKING  POWER— GENERAL 

The  power  to  make  treaties  necessarily  exists  as  an 
inherent  attribute  of  sovereignty,  since  it  is  an  indis- 
pensable prerequisite  to  the  maintenance  of  interna- 
tional relations.  To  deny  the  power  is  to  deny  the 
sovereignty.  The  power  is  one  which  has  never  belonged 
to,  nor  been  exercised  by,  the  states  of  the  Union  sep- 
arately. Prior  to  the  Revolution,  the  colonies  had  no 
international  status — all  foreign  relations,  including  the 
making  of  treaties,  were  maintained,  exclusively,  by 
the  British  government.  The  inhabitants  of  the  colonies 
constituted  not  a  separate  people,  but  essentially  an 
integrant  of  the  British  people.  The  revolution  against 
the  mother  country  was  based  on  the  ground  that  their 
rights  as  English  subjects,  rather  than  as  individuals, 
had  been  violated.  By  the  Declaration  of  Independence, 
they  recognized  their  former  allegiance  to  the  British 
Crown,  by  declaring  that  they  were  thenceforth  ab- 
solved from  it.  Even  before  the  Declaration  of  Inde- 
pendence, steps  had  been  taken  looking  to  a  political 
union.  Delegates  were  appointed  from  the  several 
colonies  for  the  purpose  of  considering  the  differences 
which  had  arisen  between  them  and  the  English  gov- 
ernment. These  delegates  constituted  the  Continental 
Congress,  and,  as  such,  exercised  the  various  powers  of 
external  sovereignty,  which  have  been  heretofore 


TREATY-MAKING  POWER:    GENERAL  117 

enumerated.1  While  the  Declaration  of  Independence 
was  in  process  of  being  considered  and  formulated,  the 
Congress  appointed  a  Committee  to  prepare  Articles  of 
Confederation.  These  Articles  were  prepared,  and  after 
being  debated  and  amended,  were  finally  adopted  by 
the  Congress  in  1777,  and  subsequently  ratified  by  the 
authority  of  the  legislatures  of  the  several  states.  This 
instrument,  feeble  and  unsatisfactory  though  it  was, 
contemplated  a  permanent  establishment  with  sov- 
ereign powers,  for  it  was  designated  "Articles  of  Con- 
federation and  Perpetual  Union"  and  distinctly  de- 
clared the  sole  and  exclusive  power  of  the  United  States, 
through  the  government  of  the  Union,  namely,  the  Con- 
gress of  the  Confederation,  to  enter  into  treaties  and 
alliances,  and  to  send  and  receive  ambassadors.  The 
Treaty  of  Amity  and  Commerce  with  France  was  rati- 
fied by  this  Congress  as  early  as  May  4,  1778;  and 
treaties  with  other  governments  were  in  like  manner 
ratified  prior  to  the  adoption  of  the  Constitution.  In 
no  instance  was  the  treaty-making  power  ever  exercised, 
or  this  essential  attribute  of  sovereignty  ever  possessed, 
by  any  state  separately.  Governments  come  and  go — 
hereditary  rulers  give  place  to  elected  rulers — allegiance 
changes — but  sovereignty  is  immortal.  It  is  never  in 
suspension  searching  for  a  possessor.  A  political  society 
cannot  exist  without  a  supreme  will  somewhere;  so  that 
when  sovereignty  ceases  in  one  holder,  it  must,  in- 
stantly, attach  to  another.  When,  therefore,  sov- 
ereignty over  the  American  colonies  ceased  to  exist  in 
the  British  Crown,  it  immediately  passed  to  the  states, 
not  severally  but  in  their  united  and  corporate  capacity, 

JChap.  II,  p.  37. 


Il8    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

where  it  has  ever  since  remained,  being  exercised,  in 
turn,  by  the  several  governmental  agencies  which  were 
constituted  by  the  general  authority.  The  treaty-mak- 
ing power  then,  like  the  war-making  powers,  has  always 
been  vested  in  the  Nation,  and  exercised  by  national 
instrumentalities.  The  provisions  respecting  it  in  the 
Constitution,  in  so  far  as  the  respective  powers  of  the 
states  and  the  Nation  are  concerned,  are  purely  declar- 
ative, and,  in  so  far  as  the  general  government  is  con- 
cerned, are  confirmative  rather  than  creative.  In 
accordance  with  the  principles  already  discussed  this 
power  would  have  passed  to  the  general  government 
instituted  by  the  Constitution,  as  the  lineal  successor 
of  the  preceding  national  agencies,  in  the  absence  of 
prohibitions  or  otherwise  clearly  evinced  intention  to 
the  contrary.  If  denied  to  the  national  government,  it 
would  not  have  been  among  the  reserved  powers  of  the 
states,  but  would  have  been  among  those  reserved  to  the 
people,  and,  hence,  incapable  of  practical  exercise,  a 
situation,  of  course,  quite  incapable  of  being  imagined. 
The  treaty-making  power  is  not,  therefore,  one  of  the 
powers  delegated  or  surrendered  by  the  several  states,  or 
by  the  people  of  the  several  states,  since  it  was  never 
theirs  to  relinquish.  It  is  an  original  acquisition  of  the 
people  of  the  United  States  in  their  national  capacity, 
part  and  parcel  of  the  general  and  exclusive  sovereignty 
of  the  Nation  over  all  external  affairs,  and  since  the 
Constitution,  which  might  have  denied  it,  does  not  deny 
it  to  the  general  government,  it  must  be  vested  in  that 
government  from  the  inherent  necessities  of  the  case, 
as  well  as  by  the  grants  and  implications  of  the  Consti- 
tution. In  either  event  it  is,  of  course,  held  under  and 


TREATY-MAKING  POWER:    GENERAL  1 19 

subject  to  all  applicable  limitations  arising  from  that 
instrument. 

Charles  Henry  Butler,  whose  painstaking  and  valu- 
able researches  are  embodied  in  his  comprehensive  work 
on  the  Treaty-Making  Power,  gives  it  as  his  matured 
opinion :  "That  the  treaty-making  power  of  the  United 
States,  as  vested  in  the  Central  Government,  is  derived 
not  only  from  the  powers  expressly  conferred  by  the 
Constitution,  but  that  it  is  also  possessed  by  that 
Government  as  an  attribute  of  sovereignty."  2 

The  conclusion,  in  this  respect,  is  not  without  practical 
value.  In  one  sense,  it  may  be  unimportant  to  ascer- 
tain the  origin  and  basis  of  the  power,  since  the  existence 
of  it  is  not  questioned ;  but  from  another  point  of  view, 
the  fact  is  highly  important,  since,  as  will  appear  later, 
it  will  reflect  light  on  the  question  of  the  extent  of  the 
power,  and  the  nature  and  degree  of  the  constitutional 
restraints  upon  its  exercise. 

In  its  usual  meaning  a  treaty  signifies  "a  compact 
between  two  or  more  independent  nations  with  a  view 
to  the  public  welfare."  3  But  an  international  compact 
may  not  always  be  a  treaty  within  the  meaning  of  the 
constitutional  provision,  which  requires  the  participa- 
tion of  the  Senate.  Thus  under  Section  3  of  the  Tariff 
Act  of  1897,  provision  was  made  whereby  the  President 
was  authorized  to  negotiate,  and,  apparently  without 
the  concurrence  of  the  Senate,  conclude,  commercial 
agreements  in  respect  of  certain  specified  matters  with 
foreign  countries.  The  Supreme  Court  said  that  if  such 
an  agreement  did  not  technically  constitute  a  treaty 

1  Treaty-Making  Power,    Section  3. 
*  2  Bouvier.  Law  Dictionary,  1136. 


120    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

requiring  ratification,  it  was,  nevertheless,  an  inter- 
national compact,  and  therefore  a  treaty  within  the 
meaning  of  the  act  allowing  an  appeal  to  the  Supreme 
Court  where  the  validity  or  construction  of  a  treaty  is 
drawn  in  question.4  The  President  has  been  similarly 
authorized  by  statute,  from  time  to  time,  to  make  in- 
ternational agreements  respecting  other  matters. 

Congress  has,  likewise,  vested  the  power  in  the  Post- 
master-General, by  and  with  the  advice  and  consent  of 
the  President,  to  negotiate  and  conclude  postal  treaties 
and  conventions  with  foreign  countries,  for  the  purpose 
of  perfecting  our  foreign  postal  service.  A  similar  power 
had,  in  fact,  been  exercised  almost  from  the  inception  of 
the  government — sometimes  with  the  participation  of 
the  Senate  and  sometimes  without  it ;  and  a  large  num- 
ber of  such  compacts  were  entered  into,  although  the 
authority  to  make  postal  treaties  and  conventions  does 
not  seem  to  have  been  conferred  upon  the  Postmaster- 
General  in  precise  terms  until  1872. 

In  addition  to  these  matters,  the  President,  acting 
alone,  has,  from  time  to  time,  made  settlement  of  claims 
of  American  citizens  against  foreign  governments  by 
diplomatic  negotiation  and  agreement,  or  through  arbi- 
tration. He  also  possesses,  and  has  frequently  exer- 
cised, the  power,  without  the  participation  of  the 
Senate,  to  sign  protocols  and  modi  vivendi;  a  protocol 
being  simply  an  agreed  adjustment  of  an  international 
matter  without  the  formality  of  a  treaty  and  constitut- 
ing only  a  moral  obligation ;  and  a  modus  vivendi  being 
a  temporary  agreement  concerning  disputed  matters 
pending  the  conclusion  of  a  formal  treaty.  An  inter- 

4  224  U.  S.  600. 


TREATY-MAKING  POWER:    GENERAL  121 

national  agreement  may,  therefore,  be  a  treaty  within 
the  meaning  of  a  statute,  or  under  the  general  definition, 
or  may  be  an  international  compact,  without  being  a 
treaty  within  the  technical  meaning  of  the  Constitution. 
Precisely  where  the  dividing  line  is  to  be  drawn  has 
never  been  authoritatively  determined,  but  so  far  as 
indicated  by  the  instances  referred  to,  international 
agreements  which  are  not  treaties  in  the  full  constitu- 
tional sense,  are  perhaps  confined  to  such  as  affect 
administrative  matters,  as  distinguished  from  policies, 
and  those  which  are  of  only  individual  concern,  or 
limited  scope  and  duration,  as  distinguished  from  those 
of  general  consequence  and  permanent  character. 

Another  interesting  distinction  respecting  "treaties" 
is  made  by  the  Constitution  itself.  By  Article  II, 
Section  2,  the  exclusive  power  to  make  treaties  is  de- 
clared to  be  in  the  President  and  the  Senate ;  by  Article 
I,  Section  10,  the  states  are  prohibited  from  entering 
into  any  treaty,  alliance  or  confederation;  and,  by  a 
later  provision  in  the  same  section  the  states  are  pro- 
hibited from  entering  into  any  agreement  or  compact 
with  another  state,  or  with  a  foreign  power  without  the 
consent  of  Congress.  Conversely,  it  follows  by  logical 
inference,  a  state  may  enter  into  some  agreements  or 
compacts  with  a  foreign  power  with  the  consent  of 
Congress.  Since  the  exclusive  power  to  make  treaties 
has  not  only  been  affirmatively  conferred  upon  the  Presi- 
dent and  the  Senate  but  negatively  forbidden  to  the 
states,  it  must  result  that  the  international  compacts 
which  they  may  make  with  the  consent  of  Congress, 
are  not  "treaties"  within  the  meaning  of  the  other  con- 
stitutional provisions.  Here  again  the  line  of  separa- 


122    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

tion  between  those  compacts  with  foreign  powers 
which  may  be  made,  with  the  consent  of  Congress,  and 
those  which,  being  "treaties,"  may  not  be  made  by  any 
state  under  any  conditions,  has  never  been  drawn,  and 
remains  vague  and  indefinite.  So  far  as  I  know,  there 
has  never  been  an  attempt  on  the  part  of  a  state  to 
make  a  compact  of  any  kind  with  a  foreign  power,  and 
the  consent  of  Congress  has  never  been  sought ;  although 
there  are,  of  course,  numerous  instances  of  agreements 
and  compacts  between  states  which  have  received  the 
formal  consent  of  Congress.  The  practical  effect  of 
the  provision,  so  far  as  it  concerns  agreements  and 
compacts  with  foreign  powers,  is  restrictive  rather  than 
enabling;  that  is,  it  operates  to  put  it  beyond  the 
power  of  a  state  to  make  any  arrangement,  however 
informal,  with  a  foreign  government,  since  Congress 
is  not  likely  to  ever  consent  to  anything  which  involves 
official  negotiation  or  intercourse  between  a  state  of 
the  Union  and  a  foreign  power — the  evident  and  clear 
purpose  of  the  Constitution  being  to  leave  the  entire 
management  of  our  foreign  relations  to  the  national 
government. 

The  grant  of  the  treaty-making  power  is  so  important 
that  it  is  worth  while  to  have  before  us  the  precise 
language  of  the  Constitution.  It  is  as  follows:  "The 
President  .  .  .  shall  have  power,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two-thirds  of  the  Senators  present  concur." 
It  will  be  observed  that  the  advice  and  consent  of  the 
Senate  qualifies  the  power  of  the  President  to  make, 
not  to  negotiate,  treaties.  When  a  treaty  is  contem- 
plated, therefore,  the  President  may,  and  more  often 


TREATY-MAKING  POWER:    GENERAL  123 

does,  enter  upon  negotiations  with  the  foreign  govern- 
ment, through  diplomatic  channels,  and  carries  them 
to  the  point  of  reaching  an  understanding  as  to  the 
terms  and  phraseology  of  the  treaty,  before  the  advice 
and  consent  of  the  Senate  is  sought  at  all — subject,  of 
course,  finally,  to  Senatorial  action.  But  the  power  of 
the  Senate,  nevertheless,  is  to  advise  as  well  as  consent, 
and  its  power  is  co-ordinate,  throughout,  with  that  of 
the  President.  The  Senate  is  not  obliged  to  await  the 
initiation  of  the  President;  it  may  itself  properly  take 
the  first  step — and  has  done  so  more  than  once,  by 
passing  a  resolution  requesting  the  Chief  Executive 
to  open  negotiations  with  a  foreign  country,  with  a 
view  to  concluding  a  particular  treaty.  The  President 
is,  of  course,  strictly  within  his  authority,  if  he  decline 
to  follow  the  advice,  and,  in  that  case,  the  Senate  can 
go  no  further,  since  it  has  no  means,  if  it  had  the  power, 
of  conducting  negotiations  on  its  own  account. 

The  President,  upon  his  part,  may,  and  frequently 
does,  consult  the  Senate  before  initiating  negotiations, 
or  completing  negotiations  already  undertaken,  with 
a  view  to  obtaining  advice  in  advance.  Thus  the  right 
and  authority  of  the  Senate  to  participate  in  the  mak- 
ing of  treaties  at  any  stage  of  the  process,  has  been 
again  and  again  recognized  and  acted  upon  by  the 
Executive.  Such  long  continued  and  uniform  action 
constitutes  a  practical  construction  of  the  constitutional 
provision  on  the  part  of  those  charged  with  its  adminis- 
tration, which  the  courts  would  be  constrained  to  follow 
should  it  be  possible  to  present  the  question  in  any 
justiciable  form.  It  is  a  matter  of  history  that  the 
first  President  met  with  the  Senate  upon  two  or  three 


124    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

occasions  in  1789,  for  the  purpose  of  conferring  with, 
and  ascertaining  the  views  of,  that  body  respecting  the 
terms  of  a  treaty  in  process  of  negotiation  with  certain 
Indian  tribes.  The  matter  seems  to  have  been  fully 
discussed  between  the  President  and  the  Senate,  and 
a  vote  finally  taken  upon  the  questions  which  the 
President  had  submitted.  While  the  practice  of  con- 
sulting the  Senate  in  person  was  not  followed  by  suc- 
ceeding Presidents,  there,  nevertheless,  have  been  fre- 
quent instances  of  such  consultation  by  message  and 
by  other  less  formal  methods. 

It  is  not  an  unusual  circumstance  for  the  Secretary 
of  State,  who  is  the  direct  representative  of  the  Presi- 
dent in  all  matters  of  foreign  affairs,  to  request  a  confi- 
dential conference  with  the  Senate  Committee  on  For- 
eign Relations,  respecting  the  attitude  of  the  Senate 
upon  some  contemplated  treaty,  or  respecting  the  pre- 
cise terms  which  will  meet  with  their  approval  and 
support,  and  with  the  probable  approval  and  support 
of  the  Senate. 

The  wisdom  of  the  framers  of  the  Constitution  in 
having  vested  the  treaty-making  power  in  the  President, 
with  the  advice  and  consent  of  the  Senate,  is  apparent. 
In  the  Convention  there  was  great  variety  of  sentiment 
on  the  subject.  Upon  the  one  extreme  hand,  there 
were  those  who  favored  lodging  the  power  with  both 
Houses  of  Congress,  and,  upon  the  other,  those  who 
thought  it  should  be  vested  in  the  President  alone; 
there  were  others  who  suggested  the  House  of  Repre- 
sentatives as  the  appropriate  body  in  whom  the  power 
should  be  reposed;  and  still  others  who  were  in  favor 
of  placing  it  with  the  Senate  alone;  and,  indeed, 


TREATY-MAKING  POWER:    GENERAL  125 

the  matter  was,  at  one  time,  disposed  of  by  placing  it 
with  the  last-named  body,  and  so  reported  by  the  Com- 
mittee of  Detail  to  the  Convention.  In  the  end,  the 
plan  which  was  finally  adopted  commended  itself  to 
the  good  sense  of  the  Convention  as  insuring  preliminary 
secrecy  and  expedition  whenever  necessary,  without 
losing  the  benefit  of  the  thorough  consideration  and 
popular  approval,  which  would  result  from  the  inde- 
pendent action  of  the  Senate,  in  which  every  state 
would  have  an  equal  vote  and  an  equal  opportunity 
of  being  heard.  Negotiation  with  foreign  governments 
is  a  matter  of  such  delicacy  that  it  can  be  carried  on 
far  better  by  a  single  person,  like  the  President,  than 
by  a  large  number  of  officials,  like  the  Senate;  while 
the  combined  judgment  of  the  larger  number — including 
both  President  and  Senate — respecting  the  value  and 
wisdom  of  the  result  of  the  negotiation,  will  generally 
prove  a  safer  reliance. 

The  unwisdom  of  premature  and  sometimes  of  ulti- 
mate public  disclosure  of  treaty,  or  other,  negotiations 
with  foreign  governments,  is  so  clear,  that  the  refusal  of 
President  Washington  to  accede  to  a  request  from  the 
House  of  Representatives  to  lay  before  that  body  the 
instructions,  correspondence  and  documents  relating 
to  the  negotiation  of  the  Jay  treaty,  was  approved  by 
the  House  itself,  and  has  ever  since  been  recognized  as 
establishing  a  wise  precedent  for  subsequent  guidance. 
President  Washington,  in  his  reply,  said: 

"The  nature  of  foreign  negotiations  requires  caution,  and  their 
success  must  often  depend  on  secrecy;  and  even  when  brought  to  a 
conclusion  a  full  disclosure  of  all  the  measures,  demands,  or  eventual 
concessions  which  may  have  been  proposed  or  contemplated  would 


126    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

be  extremely  impolitic;  for  this  might  have  a  pernicious  influence 
on  future  negotiations,  or  produce  immediate  inconveniences,  per- 
haps, danger  and  mischief,  in  relation  to  other  powers.  The  necessity 
of  such  caution  and  secrecy  was  one  cogent  reason  for  vesting  the 
power  of  making  treaties  in  the  President,  with  the  advice  and  con- 
sent of  the  Senate,  the  principle  on  which  that  body  was  formed  con- 
fining it  to  a  small  number  of  members.  To  admit,  then,  a  right  in 
the  House  of  Representatives  to  demand  and  to  have  as  a  matter 
of  course  all  the  papers  respecting  a  negotiation  with  a  foreign  power 
would  be  to  establish  a  dangerous  precedent." 

The  distinction  between  foreign  affairs  and  domestic 
affairs,  in  the  matter  of  publicity,  is  recognized  by  the 
very  form  of  the  requisitions  preferred  on  the  part  of 
the  respective  Houses,  for  information  in  the  hands  of 
the  Executive  Departments.  When  information  from 
the  Secretary  of  the  Interior,  the  Postmaster-General, 
or  any  executive  head  other  than  the  Secretary  of 
State,  is  desired,  the  resolution  directs  the  officer  to 
furnish  it;  but  in  the  case  of  the  State  Department, 
dealing  with  foreign  affairs,  the  resolution  requests  the 
information  "if  not  incompatible  with  the  public  inter- 
ests." A  reply  that  to  furnish  the  information  will 
not  be  compatible  with  the  public  interests  is  seldom 
questioned. 

When  a  treaty  has  been  transmitted  to  the  Senate 
for  its  action,  the  power  of  that  body  is  plenary.  The 
treaty  may  be  ratified  precisely  as  formulated,  amended 
in  any  particular  deemed  advisable,  or  rejected  alto- 
gether. The  power  of  the  Senate  to  amend — or,  more 
accurately  speaking,  to  suggest  amendments  to — a 
treaty  has  been  sometimes  doubted.  It  has  been 
urged  that  the  power  to  advise  and  consent  to  a  treaty 
must  be  exercised  unconditionally,  one  way  or  the 


TREATY-MAKING  POWER:    GENERAL  127 

other ;  but  the  authority  of  the  Senate  is  not  thus  cate- 
gorically limited.  The  power  is  not  only  to  consent, 
or  withhold  consent,  to  the  making  of  a  treaty,  but  it 
is  to  advise  and  consent.  "The  President  .  .  .  shall 
have  power  by  and  with  the  advice  and  consent  of  the 
Senate  to  make  treaties,"  is  the  language  of  the  Con- 
stitution. By  what  warrant  may  we  insert  restrictions 
upon  a  power  thus  unconditionally  recited?  The  Senate, 
by  this  provision,  is  constituted  a  part  of  the  treaty- 
making  power,  and  is  authorized  to  participate  in  the 
making  as  well  as  to  approve  or  reject.  So  long  as  a 
treaty  remains  in  the  Senate  unacted  upon,  it  is  in 
fieri,  that  is,  not  complete  but  in  process  of  being  made, 
and  any  advice  which  is  pertinent  to  the  process  must 
obviously  be  within  the  power  of  the  Senate  to  give. 
To  deny  this  is  to  ignore  the  power  of  the  Senate  to 
advise  at  all — that  is  to  counsel  with  the  President — 
and  to  confine  that  body  to  functions  implied  by  the 
word  "consent"  alone.  The  Senate  has  uniformly  con- 
strued its  power  in  accordance  with  the  view  here  ex- 
pressed, having  amended  scores  of  treaties  since  the 
foundation  of  the  government;  and  this  practical  con- 
struction has  received  the  approval  of  the  Supreme 
Court  of  the  United  States.5 

Presidents  from  the  beginning,  in  one  way  or  in 
another,  as  already  stated,  have  freely  consulted  the 
Senate  with  reference  to  the  terms  of  treaties  in  process 
of  negotiation.  The  practice  is  a  good  one,  and  no 
wise  President  will  fail  to  follow  it  upon  all  advisable 
occasions.  It  tends  to  the  maintenance  of  cordial  rela- 
tions between  the  two,  and  enables  the  President  to 

6  9  Wall.  32-34. 


128    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

negotiate  with  more  freedom  and  certainty,  because 
of  his  knowledge  of  the  attitude  of  the  Senate  with 
respect  to  the  matters  involved. 

The  necessity  of  having  the  action  of  the  Senate 
upon  every  treaty,  however,  is  not  always  free  from 
disadvantage.  Sometimes  haste  is  essential,  and  the 
Senate  is  a  deliberate,  as  well  as  a  deliberative  body. 
The  necessity  of  debating  treaties  behind  closed  doors 
probably  shortens  the  discussion  by  the  exclusion  of 
the  galleries,  but,  nevertheless,  where  ninety-six  men 
have  the  privilege  of  unlimited  discussion,  the  process 
is  often  slow  and  tedious.  Sometimes  the  necessity  of 
meeting  the  diverging  views  of  such  a  number  of  men 
results  in  some  sacrifice  or  apparent  sacrifice  of  national 
consistency,  or  in  a  policy  which  lacks,  or  seems  to 
lack,  firmness.  On  the  whole,  however,  the  plan  pro- 
vided in  the  Constitution  has  the  clear  balance  of 
advantage. 

With  the  increased  participation  of  our  government 
in  foreign  affairs,  which  is  sure  to  follow  the  conclusion 
of  the  present  war,  the  need  of  close  and  constant  co- 
operation between  the  Executive  and  the  Senate  will 
be  greatly  accentuated.  There  will,  too,  be  increased 
need  for  the  service  in  the  Senate  of  men  trained  in 
diplomatic  usage  and  international  law,  and  of  broad 
information  about  international  problems,  as  well  as 
foresight  and  tact,  without  which,  mere  information 
may  often  be  of  little  value. 

A  question  which  has  been  much  discussed,  and  as 
to  which  there  never  has  been  common  agreement,  is 
whether  the  advice  and  consent  of  the  Senate  may  be 
constitutionally  dispensed  with  in  the  case  of  a  special 


TREATY-MAKING  POWER:    GENERAL  129 

agreement  made  in  pursuance  of  a  general  treaty  pro- 
viding for  the  arbitration  of  specified  controversies  be- 
tween ourselves  and  a  foreign  power.  In  1905,  there 
was  presented  to  the  Senate  by  the  President  a  number 
of  general  arbitration  treaties  which  had  been  negotiated 
with  France  and  nine  other  countries.  Article  I  of 
these  treaties  provided  as  follows:  "Differences  which 
may  arise  of  a  legal  nature,  or  relating  to  the  interpre- 
tation of  treaties  existing  between  the  two  contracting 
parties,  and  which  it  may  not  have  been  possible  to 
settle  by  diplomacy,  shall  be  referred  to  the  Permanent 
Court  of  Arbitration,  established  at  the  Hague  by  the 
Convention  of  the  29th  of  July,  1899,  provided,  never- 
theless, that  they  do  not  affect  the  vital  interests,  the 
independence  or  the  honor  of  the  two  contracting  states, 
and  do  not  concern  the  interests  of  third  parties." 
These  treaties  contained  a  further  provision,  set  forth 
in  Article  II,  which  reads:  "In  each  individual  case  the 
high  contracting  parties,  before  appealing  to  the  Per- 
manent Court  of  Arbitration,  shall  conclude  a  special 
agreement  defining  clearly  the  matter  in  dispute  and 
the  scope  of  the  powers  of  the  arbitrators,  and  fixing 
the  periods  for  the  formation  of  the  arbitral  tribunal, 
and  the  several  stages  of  the  procedure."  The  provision 
in  these  treaties  for  a  special  agreement  at  once  met 
with  the  strong  opposition  of  the  Senate.  It  was  in- 
sisted that,  if  incorporated,  it  would  have  the  effect  of 
permitting  the  President  to  make  a  special  agreement 
without  the  advice  and  consent  of  the  Senate,  and 
would  therefore  constitute  a  delegation  of  its  treaty- 
making  power,  and  that  this  would  be  neither  consti- 
tutional nor  wise.  It  was,  therefore,  proposed  in  the 


130   CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

Senate  to  amend  the  clause  by  striking  out  the  word 
"agreement"  and  substituting  the  word  "treaty,"  so  as 
to  require  a  special  treaty  with  the  advice  and  consent 
of  the  Senate  instead  of  a  special  agreement  by  the  Presi- 
dent alone.  This  position  of  the  Senate  the  President 
vigorously  combatted,  insisting  that  the  provision  did 
not  involve  a  delegation  of  the  treaty-making  power, 
since  the  "treaty"  would  already  have  been  made,  and 
the  conclusion  of  any  special  agreement  in  pursuance 
of  its  terms  would  simply  be  in  execution  of  an  existing 
obligation  and  not  the  making  of  a  new  one.  He  further 
insisted  that  the  treaty  would  lose  its  principal  value 
if  every  special  agreement  made  under  it  should  require 
all  the  formal  steps  involved  in  the  consideration  and 
ratification  of  a  treaty  under  the  Constitution.  The 
Senate,  however,  insisted  upon  its  views  and  amended 
the  treaties  accordingly.  The  President  thereupon  sig- 
nified his  determination  not  to  proceed  further  with 
the  matter,  and  the  treaties  were  never  ratified. 

Subsequently,  however,  in  1908  and  1909,  twenty- 
five  general  arbitration  treaties  were  negotiated  with 
foreign  countries,  including  all  the  great  powers  with 
the  exception  of  Germany,  Russia  and  Turkey.  These 
treaties  which  were  submitted  to  the  Senate,  expressly 
provided  that  the  special  agreement  referred  to  should 
be  made  "with  the  advice  and  consent  of  the  Senate." 
In  this  form  they  were  all  approved  by  the  Senate  and 
ratified. 

In  1911,  under  President  Taft's  administration,  two 
treaties  in  identical  language  were  negotiated  with 
Great  Britain  and  France,  by  which  certain  changes 
were  made  in  the  provisions  of  the  former  treaties  of 


TREATY-MAKING  POWER:   GENERAL  131 

1908.  The  first  clause  was  somewhat  expanded.  The 
differences  between  the  high  contracting  parties  which 
were  to  become  the  subject  of  arbitration,  it  was  pro- 
vided, should  be  those  arising  "by  virtue  of  a  claim  of 
right  made  by  one  against  the  other,  under  treaty  or 
otherwise,  and  which  are  justiciable  in  their  nature  by 
reason  of  being  susceptible  of  decision  by  the  applica- 
tion of  the  principles  of  law  or  equity."  Provision  was 
made  for  a  special  agreement  of  submission  in  each 
case  which  should  provide  for  the  organization  of  the 
tribunal,  if  necessary  (that  is,  where  some  tribunal 
other  than  the  Permanent  Court  of  Arbitration  should 
be  selected) ,  define  the  scope  of  the  powers  of  the  arbi- 
trators, the  question  or  questions  at  issue,  and  settle 
the  terms  of  reference  and  the  procedure  thereunder. 
No  change  was  made  in  the  provision  requiring  the 
special  agreement  to  be  made  with  the  advice  and  con- 
sent of  the  Senate;  but  an  additional  provision  was 
incorporated  providing  that  in  case  of  disagreement  as 
to  whether  a  difference  was  subject  to  arbitration  under 
Article  I,  that  question  should  be  submitted  to  a  Joint 
High  Commission  of  Inquiry,  and  if  this  Commission, 
or  all  but  one  of  its  members,  should  decide  that  the 
difference  fell  within  the  scope  of  Article  I,  it  should 
then  be  referred  to  arbitration  in  accordance  with  the 
treaty.  The  Joint  High  Commission  thus  provided  for 
was  to  be  made  up  of  three  members  selected  by  each 
party  to  the  dispute,  or  in  any  particular  case,  accord- 
ing to  the  terms  of  the  conference;  the  result  of  which 
would  be  that  the  Commission  would  probably — and, 
in  any  event,  could — in  each  instance  be  made  up  by 
the  selection  of  three  Americans  and  three  citizens  or 


132    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

subjects  of  the  other  party  to  the  dispute.  There  was 
again  strenuous  objection  on  the  part  of  the  Senate  to 
this  provision  for  the  submission  to  a  Commission  of 
the  question  of  the  arbitrable  character  of  the  dispute, 
where  the  high  contracting  parties  did  not  agree  upon 
it;  and  it  was  again  insisted  that  such  a  provision  in- 
volved a  delegation  of  the  treaty-making  power.  The 
result  was  that  this  provision  was  stricken  from  the 
treaties  before  their  approval.  The  action  of  the  Sen- 
ate was,  apparently,  based  upon  the  report  of  the  Com- 
mittee on  Foreign  Relations  to  the  effect  that  to  "take 
away  from  the  Senate  the  determination  of  the  most 
important  question  in  a  proposed  treaty  of  arbitration 
is  necessarily  in  violation  of  the  treaty  provisions  of  the 
Constitution.  The  most  vital  question  in  every  pro- 
posed arbitration  is  whether  the  difference  is  arbit- 
rable." With  the  utmost  respect  for  the  opinions  of 
those  senators  who  constitute  a  majority,  I  have  never 
been  able  to  agree  with  their  conclusion,  and  I  think 
the  action  of  the  Senate  constituted  a  distinct  impair- 
ment of  the  value  of  the  treaties. 

The  conclusion  that  the  provision  in  question  con- 
stituted a  delegation  of  the  treaty-making  power  seems 
to  me  wholly  without  warrant.  The  treaties  laid  down 
a  general  rule  by  which  the  arbitrable  character  of  the 
differences  was  to  be  determined.  That  rule  was  that 
the  differences  should  (i)  arise  by  virtue  of  a  claim  of 
right  made  by  one  against  the  other  under  treaty  or 
otherwise,  and  (2)  that  it  should  be  justiciable  in  its 
nature  by  reason  of  being  susceptible  of  decision  by  the 
application  of  the  principles  of  law  or  equity.  This  fur- 
nishes a  definite  standard  by  reference  to  which  the 


TREATY-MAKING  POWER:    GENERAL  133 

question  is  to  be  determined.  That  it  might  sometimes 
be  a  difficult  question  to  determine,  does  not  alter  the 
fact  that  the  treaty  furnishes  the  standard.  It  is  fre- 
quently the  case  with  statutes  that  even  persons  skilled 
in  the  elucidation  of  their  mysteries  may  differ  as  to 
their  meaning  and  application  in  given  cases.  In  any 
such  case,  if  the  parties  concerned  and  their  legal  advi- 
sers are  unable  to  finally  agree,  the  remedy  is  to  present 
the  question  to  a  court,  which  acts  as  an  umpire  to 
decide  who  is  right.  Nobody  will,  of  course,  pretend 
that  such  a  process  involves  a  delegation  of  the  law- 
making  power.  The  law-making  function  has  already 
acted  and  what  follows  is  the  operation  of  the  law- 
interpreting  function.  An  exactly  parallel  situation 
was  presented  by  the  treaty  provision  in  question. 
When  the  general  arbitration  treaty  was  made  and 
ratified  the  treaty-making  process  was  complete.  To 
determine  whether  or  not  a  given  case  fell  within  or  fell 
without  the  terms  of  the  treaty,  as  already  recited, 
involved  not  the  treaty-making  function  but  the  treaty- 
construing  function.  There  was  no  attempt  to  delegate 
a  power  to  make  a  treaty  covering  the  special  case  as  it 
arose;  but  an  authority  was  conferred  to  determine 
whether  the  facts  of  the  given  case  came  within  the 
broad  but  definite  jurisdictional  provisions  of  a  genera! 
treaty  already  made.  The  determination  of  such  a 
question  by  the  Joint  High  Commission  would  be  no 
more  the  exercise  of  the  treaty-making  power  than  the 
determination  by  a  judge  that  a  complaint  states  a 
case  under  a  general  statute,  and  that  the  court  has 
jurisdiction  to  consider  and  decide  it,  would  be  the 
exercise  of  the  law-making  power.  In  addition  to  this, 


134   CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

the  special  agreement  provided  for  would,  under  the 
treaty,  still  go  to  the  Senate  for  its  advice  and  consent, 
should  the  Commission  decide  the  differences  to  be 
arbitrable,  precisely  as  in  the  case  where  the  high  con- 
tracting parties  so  decide  in  the  first  instance.  In 
either  event  the  Senate  would  have  the  final  word.  The 
action  of  the  Senate,  therefore,  presented  the  obvious 
inconsistency  of  maintaining  that  the  authority  con- 
ferred upon  the  Commission  to  determine  the  pre- 
liminary jurisdictional  question  constituted  a  delega- 
tion of  the  treaty  power  of  the  Senate,  while  the  same 
authority  conferred  upon  the  high  contracting  parties 
did  not.  The  provision  for  the  Commission  would  have 
had  a  tendency  to  increase  the  utilization  of  the  process 
of  arbitration  since  it  would  have  kept  the  door  of 
opportunity  open  after  the  negative  determination  of 
the  high  contracting  parties,  the  value  of  which  is 
apparent;  but  the  final  authority  of  the  Senate  would 
have  remained  precisely  the  same. 

The  practical  objections  that  were  made,  namely,  that 
we  might  be  compelled  to  arbitrate  such  questions  as 
the  Monroe  Doctrine  or  the  right  to  exclude  aliens,  or 
other  purely  American  questions,  were  to  my  mind 
equally  without  foundation.  Such  questions  cannot  be 
said  to  be  justiciable  or  susceptible  of  decision  by  the 
application  of  the  principles  of  law  or  equity.  These 
questions  constitute  political  policies,  and  would  no 
more  come  within  the  scope  of  the  powers  of  arbitra- 
tion, as  laid  down  by  this  treaty,  than  the  question  of 
whether  an  individual  is  justified  in  declining  to  be  on 
visiting  terms  with  some  neighbor  would  constitute  a 
proper  subject  for  judicial  inquiry. 


TREATY-MAKING  POWER:    GENERAL  135 

In  addition  to  this,  the  consent  of  at  least  two  out 
of  three  of  our  own  citizens,  who  would  be  members  of 
the  Commission,  would  be  required  before  any  such 
question  could  be  held  justiciable,  and  the  chance, 
therefore,  of  its  ever  being  thus  determined,  was  so 
remote  as  to  be  practically  impossible.  Nations,  as 
well  as  individuals,  have  rights  which  by  their  very 
nature  are  insusceptible  of  submission  to  the  determi- 
nation of  any  tribunal ;  as,  for  example,  the  right  of  an 
individual  to  his  own  opinions  or  to  choose  his  own 
associates,  and,  as  for  example,  the  right  of  a  nation 
to  select  its  own  political  principles  and  policies,  form  of 
government,  and  determine  who  may  and  who  may 
not  be  admitted  to  its  territory  or  partake  of  its  citi- 
zenship. 

The  fear  that  was  expressed  by  some  to  the  effect  that 
under  the  terms  of  the  treaty  we  might  be  obliged  to 
arbitrate  matters  affecting  the  national  honor  was 
equally  ill  founded.  National  honor,  and  personal 
honor  as  well,  are  very  real  and  precious  things  to  be 
preserved  at  even  great  hazard,  whenever  actually 
assailed;  but  "honor"  is  a  flexible  and  much-abused 
term,  the  meaning  and  application  of  which,  all  too 
frequently,  depends  upon  an  artificial  point  of  view,  and 
is  narrowed  or  broadened  by  temperamental  and  racial 
differences,  or  by  the  sentimental  influences  of  the 
moment.  It  is  a  melancholy  fact  that  a  good  deal  that 
is  utterly  spurious  passes  current  under  the  name  of 
"honor."  History  is  replete  with  instances  where  in  the 
first  heat  of  resentment  one  nation  has  regarded  its  honor 
as  having  been  assailed  by  another,  only  to  conclude  after 
a  period  of  reflection  that  an  over-sensitive  view  of  the 


136    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

matter  had  been  taken.  The  question  of  "honor"  is  so 
often  and  so  greatly  influenced  by  the  personal  equation 
that  if  made  a  formal  basis  of  action,  or  a  formal  limi- 
tation upon  action,  it  is  sure,  sooner  or  later,  to  result  in 
a  situation  where  the  distinction  between  genuine 
sentiment  and  fictitious  sentimentality  will  disappear. 
We  know  that  when  the  duello  was  the  recognized 
remedy  for  wounded  self-esteem  mere  matters  of  punc- 
tilio were  frequently  exaggerated  into  affairs  of  honor. 
There  may  some  day,  of  course,  arise  that  rare  and  ex- 
ceptional case  when  the  affront  to  the  national  honor 
will  be  so  unquestionable  and  so  grave  that  the  indig- 
nation of  the  people,  even  after  reflection,  would  sweep 
aside  every  restraint  that  stands  in  the  way  of  the  swift 
punishment  of  the  aggressor;  but  it  is  difficult  to  con- 
ceive any  such  case  as  falling  within  the  description  of 
"differences  .  .  .  susceptible  of  decision  by  the  ap- 
plication of  the  principles  of  law  or  equity;"  and  I  do 
not  imagine  that  any  American  member  of  a  Joint  High 
Commission  would  ever  so  decide.  On  the  other  hand, 
whenever  the  case  for  one  side  or  the  other  is  without 
merit,  the  presence  in  a  treaty  of  an  exception  so  equivo- 
cal will  afford  an  altogether  too  convenient  pretext 
upon  which  to  base  a  refusal  to  submit  a  perfectly 
legitimate  controversy  to  arbitration.  These  two 
treaties  have  never  been  ratified,  and  it  is  unfortunate 
that  such  dubious  phrases  as  "vital  interests"  and  "honor 
of  the  contracting  states"  remain  as  exceptions  in  exist- 
ing treaties.  As  said  by  former  Secretary,  now  Senator, 
Knox:  "These  are  terms  of  wide  and  varied  general 
meaning,  which  are  not  judicially  definable  and  mean 


TREATY-MAKING  POWER:    GENERAL  137 

whatever  the  particular  nation  involved  declares  them 
to  mean." 

Article  VI  of  the  Constitution  declares  that  treaties 
made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land 
in  common  with  the  Constitution  itself  and  all  laws  of 
the  United  States  made  in  pursuance  of  the  Constitu- 
tion. This  provision  has  introduced  into  our  political 
system  an  interesting  principle  of  far-reaching  impor- 
tance. A  treaty,  primarily  and  in  all  its  international 
aspects,  is  simply  a  contract  between  two  or  more  sov- 
ereign parties.  It  does  not  ordinarily  constitute  inter- 
national law  although  it  is  frequently  valuable  as  evi- 
dence tending  to  establish  what  that  law  is  in  some 
disputed  particular.  There  are,  to  be  sure,  certain 
treaties,  signed  by  substantially  all  the  civilized  na- 
tions, of  such  recognized  authority  that  the  principles 
they  announce  have  come  to  be  accepted  as  rules  of 
international  law;  but  even  these  treaties  may  be 
regarded  not  as  constituting  substantive  international 
law,  but  rather  as  evidence  of  the  law  of  such  a  conclu- 
sive character  as  to  foreclose  further  question.  Inter- 
national law  is  law  of  the  land,  and  courts  take  judicial 
notice  of  it  as  they  do  of  domestic  law.  That  is  true  of 
Great  Britain  and  was  true  before  the  separation  of  the 
Colonies,  and  it  has  always  been  a  recognized  principle 
of  our  own  jurisprudence.  But  a  treaty  is  not  primarily 
law  of  the  land.  However  conclusive  its  provisions,  it 
is  essentially  an  agreement  which  does  not  operate  of 
its  own  force  to  accomplish  the  objects  set  forth.  Under 
the  constitutional  provision,  however,  a  treaty  is  not 
only  a  contract  but  it  is  law,  with  the  result  that  when- 


138    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

ever  it  establishes  rights  as  distinguished  from  promising 
them,  it  has  the  effect  of  an  act  of  legislation  to  be  en- 
forced by  the  courts.  Where,  however,  the  treaty  is 
executory,  and  requires  some  action  to  effectuate  its 
provisions,  as  for  example  an  appropriation  of  money  by 
Congress,  it  is  subject  not  to  the  judicial  but  to  the 
political  power.  An  executory  treaty,  requiring  further 
legislation  or  executive  action,  is  obviously  not  a  law 
any  more  than  a  bill  is  a  law,  which  has  passed  one 
House  and  not  the  other,  or  has  passed  both  Houses  but 
lacks  the  approval  of  the  President.  In  other  words, 
such  a  treaty  cannot  be  law  of  the  land  because,  while 
it  is  complete  as  a  contract,  it  is  not  complete  as  a  law, 
and  does  not  become  complete  until  it  has  been  supple- 
mented by  the  requisite  political  action.  When  this  has 
been  taken,  any  justiciable  right  established  by  the 
treaty  plus  the  supplemental  action,  will  become  subject 
to  judicial  enforcement.  It  follows  that  the  provision 
making  a  treaty  the  supreme  law  of  the  land  is  not  to 
be  interpreted  literally,  but,  so  far  as  the  judicial  power 
of  the  courts  is  concerned,  includes  only  such  treaties 
as  are  self-executing.  So  long  as  the  concurrence  of 
Congress  is  required,  or  some  further  action  of  the 
Executive  is  necessary,  to  render  the  treaty  operative, 
it  does  not  reach  the  dignity  of  law. 

It  will  be  seen  that  laws  made  in  pursua»ce  of  the 
Constitution,  as  well  as  treaties  made  under  the  author- 
ity of  the  United  States,  shall  be  the  supreme  law,  and 
there  is  nothing  in  the  language  of  the  provision  or  else- 
where in  the  Constitution  to  indicate  that  either  is  of 
superior  efficacy  to  the  other.  The  result  is,  as  the 
Supreme  Court  has  decided,  that  either  may  be  super- 


TREATY-MAKING  POWER:   GENERAL  139 

seded  by  the  other.  A  treaty  may  have  the  effect  of 
repealing  an  Act  of  Congress,  or  an  Act  of  Congress  of 
repealing  a  treaty.6 

Thus,  the  legislation  of  Congress  excluding  Chinese 
immigrants,  which  utterly  contravened  certain  provi- 
sions of  a  Chinese  treaty,  was  held  to  effect  a  repeal  or  a 
modification  of  these  provisions,  and  was  binding  upon 
the  courts.7 

If  Congress,  by  legislation,  may  annul  a  treaty  which 
is  self-executing  and,  therefore,  law,  it  may  likewise 
repeal  or  alter  legislation  passed  to  make  the  treaty 
effective,  or  refuse  to  enact  such  legislation  in  the  first 
instance;  and  in  either  event  the  courts  are  without 
power  to  interfere  in  any  way.  A  party  to  the  treaty 
has  no  redress  except  to  appeal  to  the  moral  sense  of  the 
other  party,  and  that  failing,  to  either  submit  or  declare 
war.  It  is  needless,  however,  to  say  that  Congress 
cannot  by  abrogating  a  treaty  disturb  property  rights 
which  have  already  become  vested  in  pursuance  of  its 
terms. 

The  power  of  Congress  to  abrogate  a  treaty  or  to  re- 
fuse to  enact  legislation  necessary  to  effectuate  a  treaty 
or  to  repeal  or  alter  such  legislation  after  its  enactment, 
should  be  exercised  only  for  the  clearest  and  most  com- 
pelling reasons — reasons  which  will  rarely  exist  outside 
the  justifying  principles  of  international  law.  Mere 
hardship,  however  severe,  the  presence  in  the  treaty  of 
unwise  stipulations,  even  to  the  point  of  folly,  will 
never  justify  its  exercise;  for  these  are  considerations 
which,  it  must  be  conclusively  assumed,  were  weighed 

8 1 1  Wall  620. 
7  130  U.  S.  581. 


140    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

by  the  makers  of  the  treaty  by  whose  determination 
we  become  irrevocably  bound.  Nations  like  individuals 
must  stand  by  their  bargains,  whether  they  turn  out  to 
be  profitable  and  wise,  or  burdensome  and  foolish.  In 
no  other  way  and  upon  no  other  principle  can  inter- 
national intercourse  be  decently  maintained.  The  very 
fact  that  the  affirmative  action  of  Congress  in  these  re- 
spects cannot  be  judicially  or  otherwise  authoritatively 
reviewed  and  set  aside,  if  wrong — nor  the  failure  of  Con- 
gress to  act,  when  failure  is  inexcusable,  become  the 
basis  of  coercive  measures — emphasizes  the  necessity 
for  the  most  exact  observance  of  the  obligations  which 
the  duly  constituted  treaty-making  agencies  of  the  gov- 
ernment have  assumed.  The  word  of  honor  of  a  nation, 
like  the  word  of  honor  of  a  man,  once  given,  passes  into 
the  realm  of  undebatable  things.  That  a  treaty  is  only 
"a  scrap  of  paper"  is  a  doctrine  so  depraved  that  any 
nation  which  gives  it  sanction  deserves  to  be  held  for 
all  time  in  the  just  scorn  of  all  faith-keeping  peoples. 


CHAPTER  VII 

THE  TREATY-MAKING  POWER- 
HOW  FAR  LIMITED 

One  of  the  most  important  questions  connected  with 
the  subject  of  treaty-making  is  that  which  concerns 
the  extent  of  the  power,  the  discussion  of  which  will 
now  be  undertaken.  Is  this  power  plenary  or  limited? 
If  the  latter,  how  and  by  what  authority  is  it  limited 
and  what  are  the  limitations?  The  first  question  is  sus- 
ceptible of  a  ready  answer;  the  second  is  one  of  diffi- 
culty. 

The  power  is  subject  to  limitations  imposed  both  by 
international  law  and  by  the  terms  and  implications  of 
the  Constitution.  The  limitations  of  the  first  class  arise 
from  certain  fundamental  principles  of  the  law  of  na- 
tions essentially  analogous  to  what  is  called  in  municipal 
law  "public  policy."  The  freedom  of  international  con- 
tract is  limited  by  these  principles  as  the  freedom  of 
private  contract  is  limited  by  this  policy.  And  precisely 
as  public  policy  is  more  or  less  elastic,  these  principles 
are  more  or  less  elastic,  and  expand  and  contract  in 
response  to  the  prevailing  opinions  of  the  times.  There 
is,  of  course,  no  requirement  that  the  high  contracting 
parties  in  making  their  agreements  shall  stipulate  for 
the  recognition  of  rights  or  the  enforcement  of  obliga- 
tions in  conformity  with  any  positive  rules  of  the  law  of 
nations.  They  are  at  liberty  to  make  such  engagements 
as  they  choose,  whether  the  rights  declared  or  the  obliga- 


142    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

tions  assumed  accord  with,  or  differ  from,  those  which 
would  be  enforced  by  the  law  of  nations  in  the  absence 
of  agreement,  provided  these  principles  are  not  in- 
fringed; just  as  individuals  may  assume  obligations 
entirely  different  in  character  or  degree  from  those 
which  would,  in  the  absence  of  agreement,  be  imposed 
by  the  positive  rules  of  the  municipal  law,  provided 
their  stipulations  are  not  contrary  to  public  policy. 
All  this,  of  course,  is  quite  obvious. 

It  has  sometimes  been  said  that  the  term  "law"  is  not 
applicable  to  the  rules  which  govern  the  intercourse  of 
nations,  since  these  rules  have  neither  the  command  nor 
the  coercive  power  of  a  supreme  authority  behind  them. 
The  term  is,  nevertheless,  substantially  accurate,  for 
these  rules,  while  not  ordered  nor  enforced  by  a  superior 
authority,  are  rules  of  action  in  their  nature  obligatory 
rather  than  advisory,  which  nations  are  constrained  to 
respect  and  follow  under  the  compelling  pressure  of  the 
opinions  of  civilized  mankind.  It  is  true,  in  one  sense, 
that  nations  may  make  with  one  another  such  contracts 
as  they  please,  but,  nevertheless,  certain  stipulations 
which  are  opposed  to  international  principles  and 
policies  are  unlawful.  A  treaty  may  not  require  the 
doing  of  something  undeniably  contrary  to  morality  or 
justice.  Thus,  a  treaty  requiring  one  of  the  contracting 
parties,  without  cause,  to  break  a  treaty  obligation  due 
to  a  third  party  would  be  clearly  obnoxious  to  the 
plainest  principles  of  international  morality,  and  it  is 
impossible  to  concede  that  the  authority  to  make  such 
a  treaty  is  within  the  legitimate  power  of  any  treaty- 
making  agency.  The  same  would  be  true  of  a  treaty 
which  undertook  to  re-establish  the  slave  trade;  to 


TREATY-MAKING  POWER:    LIMITATIONS          143 

control  the  use  of  the  sea,  that  common  international 
highway;  or  to  invade  and  subjugate  another  inde- 
pendent and  unoffending  nation. 

We  are,  however,  more  especially  concerned  with  the 
limitations  imposed  by  the  Constitution  or  by  the  nature 
of  our  own  institutions.  Certain  limitations  are  effected 
by  positive  prohibitions.  Whatever  the  Constitution 
forbids  absolutely,  of  course,  may  not  be  done  by  a 
treaty  any  more  than  by  any  other  method.  No  such 
restrictions  are  imposed  upon  the  treaty-making  power, 
however,  in  specific  terms,  as  in  the  case  of  the  law- 
making  powers.  Moreover,  the  treaty-making  power  is 
conferred  in  general  terms,  while  the  subjects  with 
which  the  law-making  power  may  deal  are  carefully 
enumerated,  which,  in  itself,  constitutes  a  limitation, 
in  consonance  with  the  rule  that  the  expression  of  one 
thing  excludes  other  things.  A  sufficient  reason  for  this 
enumeration  in  the  case  of  the  law-making  powers  and 
the  absence  of  it  in  the  case  of  the  treaty-making  power, 
lies  in  the  fact  that  the  former  are  divided  between 
the  states  and  the  Nation,  while  the  latter  is  confined 
exclusively  to  the  Nation.  These  differences  are  typical 
of  the  exclusive  as  well  as  the  broad  character  of  the 
external  powers  of  the  national  government  generally. 

No  limitations  upon  the  treaty-making  power,  there- 
fore, exist  by  reason  of  the  terms  in  which  the  power  is 
conferred,  or  by  reason  of  any  directly  restrictive  lan- 
guage ;  but  such  as  do  exist  result  "from  the  nature  and 
fundamental  principles  of  our  government"  which  forbid 
that  a  treaty  should  "change  the  Constitution  or  be  held 
valid  if  it  be  in  violation  of  that  instrument."  1 

»n  Wall  620. 


144    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

It  is  needless  to  say  that  such  limitations  are  re- 
strictive only  upon  our  own  governmental  agencies. 
Necessarily  they  are  not  controlling  upon  other  nations 
since  the  Constitution  has  no  extraterritorial  operation. 
Theoretically,  the  United  States  might  be  bound  by  the 
obligations  of  a  treaty  under  the  law  of  nations,  from 
which  it  would  be  absolved  under  the  Constitution. 
Since,  however,  foreign  governments  in  dealing  with  us 
must  look  into  the  Constitution  sufficiently,  at  least,  to 
see  what  political  agencies  have  the  treaty-making 
power,  it  is  not  without  reason  to  maintain  that  they 
will  also  be  bound  to  take  notice  of  the  limitations  upon 
the  authority  of  these  agencies,  in  analogy  to  a  similar 
principle  in  the  law  of  agency  which  denies  the  liability 
of  the  principal  for  his  agent's  acts,  beyond  the  known 
or  apparent  scope  of  the  latter's  authority.  However 
this  may  be,  and  whatever  the  case  may  be  in  respect 
of  treaties  regarded  as  international  obligations,  it  is 
certain  that  considered  from  the  standpoint  of  municipal 
law,  they  may  not  contravene  the  applicable  restraints 
of  the  Constitution,  or  such  restraints  as  arise  from  the 
nature  of  the  government  instituted  by  the  Constitution. 
In  other  words,  while  the  treaty-making  power  is  con- 
ferred without  any  express  reservations  it  is,  neverthe- 
less, subject  to  certain  fundamental  limitations.  Mr. 
Justice  Field  described  these  limitations  generally  as 
precluding  the  treaty-making  power  from  authorizing 
"what  the  Constitution  forbids,  or  a  change  in  the  char- 
acter of  the  government  or  in  that  of  one  of  the  states, 
or  a  cession  of  any  portion  of  the  territory  of  the  latter 
without  its  consent."  Beyond  these  exceptions,  he  says, 
the  power  may  be  exercised  respecting  any  matter  prop- 


TREATY-MAKING  POWER:    LIMITATIONS  145 

erly  the  subject  of  negotiations  with  a  foreign  country.2 
Mr.  Calhoun  in  his  "Discourse  on  the  Constitution  and 
Government  of  the  United  States"  enumerates  the  limita- 
tions in  more  detail.  What  he  says  may  be  briefly 
epitomized  as  follows: 

1.  The  questions  dealt  with  must  be  inter  alias,  that 
is,  questions  between  the  United  States  and  foreign 
powers  requiring  adjustment. 

2.  The  power  is  limited  by  all  the  provisions  of  the 
Constitution  which  inhibit  certain  acts,  or  which  direct 
acts  to  be  done  in  a  particular  way. 

3.  It  is  not  competent  (a)  to  change  the  character  of 
the  government  or  (b)  to  do  that  which  can  be  done  only 
by  the  constitution-making  power,  or  (c)  to  do  that 
which  is  inconsistent  with  the  nature  and  structure  of 
the  government  or  the  objects  for  which  it  was  formed, 
among  which  is  included  the  lack  of  power  to  change  or 
alter  the  boundary  of  a  state  or  cede  any  part  of  its 
territory  without  its  consent. 

Let  us  examine  these  suggestions  seriatum : 
I.  That  the  power  extends  only  to  questions  between 
the  parties  requiring  adjustment  is  a  practical  if  it  were 
not  a  legal  limitation,  since  it  is  not  to  be  supposed 
that  nations  will  care  to  negotiate  and  make  treaties 
respecting  affairs  by  which  they  are  not  mutually  af- 
fected; and  their  own  determination  of  the  matter 
should  ordinarily  control.  If,  however,  a  treaty  should 
be  concluded  with  the  United  States,  for  example,  mak- 
ing disposition  of  exclusively  internal  affairs,  un- 
doubtedly it  would  be  invalid,  as  an  attempt  to  deal 
with  matters  not  the  subject  of  treaty  with  a  foreign 

*  133  U.  S.  266. 


146    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

power.  Such  a  treaty  would  be  either  a  specious  sub- 
terfuge or  an  intolerable  and  inadmissible  interference  on 
the  part  of  another  nation  with  our  domestic  concerns. 

2.  It  is  clear  that  when  the  Constitution  prohibits 
absolutely  the  doing  of  any  particular  act,  it  is  but  an 
illustration  of  the  prohibition  to  say  that  the  act  cannot 
be  done  under  the  power  to  make  treaties;   and  it  is 
equally  clear  that  when  the  Constitution  directs  that 
an  act  shall  be  done  only  in  a  particular  way,  it  may  not 
be  stipulated  for  in  a  treaty  if  that  involve  the  doing  of 
it  in  another  and  different  way;    as,  for  example,  an 
appropriation  of  money  from  the  Treasury,  since  the 
Constitution  provides  that  "no  money  shall  be  drawn 
from  the  Treasury  but  in  consequence  of  appropriations 
made  by  law."    However,  a  treaty  stipulation  for  the 
payment  of  money,  although  requiring  Congressional 
action,  will  ordinarily  constitute  a  moral  obligation  upon 
Congress  to  enact  the  necessary  legislation.     Such  a 
treaty  is  obligatory  though  not  effective.    It  is  seldom  that 
a  treaty  requires  any  further  action  on  the  part  of  the 
contracting  governments  to  render  it  obligatory,  but 
there  are  occasional  instances  where  the  promise  is  to 
advise  or  recommend  legislative  action  instead  of  prom- 
ising performance  of  the  act,  in  which  case  the  treaty  is 
neither  obligatory  nor  effective  until  the  requisite  legis- 
lation has  been  enacted. 

3.  Clearly  it  would  not  be  competent  by  treaty  to 
change  the  form  of  government  or  usurp  functions  of  the 
Constitution-making  power  or  alter  the  nature  or  struc- 
ture of  the  government,  or  the  objects  for  which  it  was 
formed.    And  this  for  the  double  reason  that  such  action 
would  not  only  violate  the  Constitution  or  the  funda- 


TREATY-MAKING  POWER:    LIMITATIONS  147 

mental  principles  upon  which  it  rests,  but  also  because 
it  would  constitute  a  gratuitous  intrusion  upon  the 
purely  internal  affairs  of  the  Nation;  therefore,  a  sub- 
ject outside  the  scope  of  international  negotiation  and 
agreement. 

The  illustration  which  Mr.  Calhoun  gives  under  this 
head,  however,  constitutes  a  case  lying  outside  the  prin- 
ciple rather  than  an  example  of  it.  It  must,  therefore, 
receive  separate  consideration.  To  change  or  alter  the 
boundary  of  a  state  or  cede  a  part  of  its  territory  without 
its  consent,  does  not  change  the  form  of  government, 
nor  do  that  which  can  only  be  done  by  the  Constitution- 
making  power,  nor  is  it  inconsistent  with  the  nature  or 
structure  of  the  government  or  the  objects  for  which  it 
was  formed.  If  such  action  be  outside  the  treaty-making 
power  of  the  national  government  it  must  be  for  reasons 
quite  apart  from  any  of  these  considerations.  There  is 
nothing  in  the  Constitution  wttich  specifically  pro- 
hibits such  a  treaty.  The  form,  nature  and  structure 
of  the  government  is  a  matter  of  organization,  not  a 
matter  of  geography;  the  Constitution-making  power 
has  to  do  with  the  original  form  and  the  subsequent 
amendment  of  the  Constitution;  and  the  objects  of  the 
government  are  those  set  forth  in  the  preamble  and  the 
substantive  provisions  of  the  Constitution,  and  nowhere 
include  the  preservation  of  the  geographical  integrity 
of  the  states  as  one  of  these  objects.  The  obligations  of 
the  United  States  to  the  several  states,  so  far  as  they  are 
set  forth,  are  to  guarantee  to  each  a  republican  form  of 
government,  and  to  protect  each  against  invasion  and, 
on  application,  against  domestic  violence.  The  pro- 
hibitions against  interference  with  the  states  are  that 


148    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

no  state  shall  be  deprived  of  its  equal  suffrage  in  the 
Senate,  that  no  new  state  shall  be  formed  within  the 
jurisdiction  of  another  state,  nor  by  the  junction  of  two 
or  more  states  or  parts  of  states  without  the  consent  of 
the  legislatures  of  the  states  concerned,  and  of  Congress. 
There  is  no  prohibition  against  the  cession  of  state  terri- 
tory. The  only  question,  therefore,  is  whether  such 
action  is  precluded  by  any  fundamental  implication. 
The  opinion  of  Mr.  Justice  Field,  already  quoted,  is  en- 
titled to  the  greatest  possible  weight,  and  if  there  were 
no  opposing  authority  or  countervailing  reason,  might 
well  be  accepted  as  final. 

It  is  to  be  observed,  in  the  first  place,  that  the  power 
of  a  sovereign  nation  to  cede  territory  lying  within  its 
limits  and  jurisdiction  is  one  which  is  well  recognized 
by  the  law  of  nations,  and  has  been  exercised  from 
time  immemorial.  Alteration  of  boundaries  by  cession 
or  otherwise,  is  one  of  the  normal  and  usual  results  of 
war.  The  greater  part  of  our  own  territory — and  if  we 
include  Indian  lands,  nearly  all  of  it — has  been  acquired 
by  negotiated  cession  or  enforced  as  a  result  of  con- 
quest. The  power  of  the  treaty-making  agencies  with 
whom  we  dealt  must,  of  course,  be  affirmed,  since  to 
deny  it  is  to  impeach  our  own  title  to  the  ceded  lands. 
As  the  result  of  the  Mexican  War  we  exacted  the  treaty 
of  Guadaloupe  Hidalgo,  by  which  the  cession  of  a 
tract  of  country  of  imperial  extent  was  made,  and 
since  erected  into  states  of  the  Union.  The  following 
question,  therefore,  is  pertinent,  and  not  to  be  easily 
answered  in  the  negative:  Suppose  Mexico,  instead  of 
being  weak  had  been  powerful,  and  that  she,  instead 
of  ourselves,  had  been  successful,  and  after  invading 


TREATY-MAKING  POWER:    LIMITATIONS          149 

Texas,  then  a  state  in  the  Union  but  quite  recently 
theretofore  Mexican  territory,  had  demanded  as  the 
price  of  peace  the  cession  of  the  whole  or  a  part  of  this 
former  possession — could  the  national  government, 
without  the  consent  of  the  state  of  Texas,  have  made 
the  cession  in  order  to  terminate  the  war  and  save 
other  and  additional  territory  from  invasion  and  con- 
quest? Is  any  other  than  an  affirmative  answer,  under 
these  circumstances,  possible?  If  not,  it  follows  that 
the  national  government  when  the  necessity  is  supreme 
has  the  power  to  cede  territory  without  the  consent 
of  the  state  in  which  it  lies.  And,  of  course,  the  treaty- 
making  power  of  the  Nation  must  be  the  judge  of  that 
necessity. 

Mr.  Jefferson  was  of  the  opinion  that  the  General 
government  did  not  possess  the  power.  Mr.  Hamilton 
was  of  the  contrary  opinion,  and  Mr.  Jefferson  conceded 
that  as  the  "result  of  a  disastrous  war  the  abandonment 
of  territory  might  be  necessary." 3 

Mr.  Justice  Story,  replying  to  an  inquiry  of  Edward 
Everett  in  1838,  gave  it  as  his  opinion  that  such  a  ces- 
sion might  be  made  where  it  was  indispensable  to  pur- 
chase peace,  or  calculated  to  promote  the  safety  of 
both  nations,  or  constituted  an  equivalent  for  a  cession 
by  the  other  side,  and  therefore  it  could  not  be  admitted 
to  be  universally  true  that  the  power  did  not  exist.4 

Chancellor  Kent,  according  to  Professor  Woolsey, 
was  of  opinion  that  this  power  of  cession  belonged  ex- 
clusively to  the  United  States,  though  as  a  matter  of 
sound  discretion  the  assent  of  the  state  governments 

3  5  Moore,  International  Law,  172. 

4  Ibid.,  173. 


150    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

should  be  obtained.5  And  Professor  Woolsey,  while 
evidently  reluctant  to  concede  the  power,  says:  "Only 
in  extreme  cases  where  the  treaty-making  power  is 
called  upon  to  accept  the  fact  of  conquest,  or  to  save 
the  whole  body  from  ruin  by  surrendering  a  part, 
could  such  an  exercise  of  power  be  justified." 6 

Mr.  Butler,  after  reviewing  the  whole  subject,  em- 
phatically affirms  the  authority  of  the  general  govern- 
ment.7 That  the  power  exists,  subject  to  some  ill- 
defined  limitations  respecting  the  necessity  of  its 
exercise  in  given  cases,  I  think  is  a  logical  and  necessary 
conclusion. 

May  the  treaty-making  power,  without  the  concur- 
rence of  Congress,  lawfully  dispose  of  a  matter  which, 
by  the  Constitution,  is  committed  to  the  jurisdiction 
of  that  body?  We  have  seen  that  an  attempt  by  treaty 
to  appropriate  money  from  the  Treasury  would  not  be 
operative;  but  this  does  not  quite  answer  the  question, 
since  that  may  result  not  from  the  fact  that  the  affirma- 
tive power  to  appropriate  money  belongs  to  Congress 
but  from  the  fact  that  the  Constitution  clearly  requires 
that  no  money  shall  be  drawn  from  the  Treasury  in  any 
other  way.  But  the  mere  fact  that  Congress  is  author- 
ized to  legislate  upon  a  particular  subject  does  not,  in 
my  judgment,  remove  it  from  the  jurisdiction  of  the 
treaty-making  power,  nor  prevent  treaty  stipulations 
respecting  it  from  becoming  obligatory  and  effective 
without  Congressional  action.  A  conclusion  to  that 
extent  would  seem  to  be  involved  in  the  consideration 

8 1  Butler,  Treaty-Making  Power,  413. 

8  2  Butler,  393. 

7  2  Butler,  393,  394. 


TREATY-MAKING  POWER:    LIMITATIONS  151 

that  a  treaty  duly  concluded  by  the  constitutional 
agencies  may  have  the  effect  of  repealing  a  prior  act 
of  Congress.  Such  a  treaty  necessarily  disposes  of  a 
matter  within  the  enumerated  powers  of  Congress  since 
it  repeals  a  statute  passed  in  pursuance  of  these  powers. 
That  a  treaty,  by  its  terms  self-executing,  may  have  this 
effect  has  been  decided  by  the  Supreme  Court  more 
than  once,  and  is  no  longer  open  to  question.  From  the 
beginning,  however,  the  House  of  Representatives  has 
consistently  maintained  that  while  it  constitutes  no 
part  of  the  treaty-making  agency  of  the  Nation,  never- 
theless, a  treaty  which  undertakes  to  dispose  of  a  sub- 
ject included  within  the  law-making  powers  of  Congress 
is  inoperative  until  it  has  received  the  approval  of 
Congress,  a  proposition  which  has  generally,  though 
not  uniformly,  been  denied  by  the  Senate,  and  which 
also  seems  quite  clearly  to  be  denied  by  the  Supreme 
Court.  Mr.  Justice  Field,  in  one  of  the  Chinese  exclu- 
sion cases,  said: 

"If  the  treaty  relates  to  a  subject  within  the  powers  of  Congress  and 
operates  by  its  own  force,  it  can  only  be  regarded  by  the  courts  as 
equivalent  to  a  legislative  act."  8 

Mr.  Justice  Gray  held  that  the  admission  of  aliens 
might  be  forbidden  or  regulated  either  by  means  of  a 
treaty,  or  by  an  act  of  Congress  passed  under  the  power 
to  regulate  foreign  commerce,  and  other  powers  enumer- 
ated in  the  Constitution.9  The  fact  is  that  numerous 
treaties  regulating  foreign  commerce,  self-operative  by 
their  terms,  have  been  enforced  without  congressional 

•  112  U.  S.  562. 

•  142  U.  S.  649. 


152    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

legislation,  and  upheld  as  law  of  the  land  by  the  courts. 
Upon  that  subject,  Mr.  Justice  Field  said: 

"The  right  or  privilege  being  conferred  by  the  treaty,  parties 
seeking  to  enjoy  it  take  whatever  steps  are  necessary  to  carry  the 
provisions  into  effect.  Those  who  wish  to  engage  in  commerce  enter 
our  ports  with  their  ships  and  cargoes;  those  who  wish  to  reside  here 
select  their  places  of  residence,  no  congressional  legislation  being  re- 
quired to  provide  that  they  shall  enjoy  the  rights  and  privileges  stipu- 
lated." 10 

In  this  connection  it  may  again  be  observed,  that  the 
power  to  make  treaties  is  conferred  upon  the  President 
and  the  Senate  without  reservation  or  exception  of  any 
kind — two-thirds  of  the  Senators  present  concurring  in 
the  approval  in  order  to  make  the  treaty  effectual.  To 
procure  such  a  vote  of  the  Senate  will  generally  be  not 
less  difficult  than  to  procure  a  bare  majority  of  each 
House;  and  the  Framers  evidently  believed  that  the 
participation  of  the  Senate,  with  this  requirement  of  a 
two-thirds  vote,  would  constitute  a  sufficient  safeguard 
in  all  cases.  The  matter  of  having  the  action  of  the 
House,  as  well  as  the  Senate,  was  not  overlooked  but 
received  careful  consideration  and  was  deliberately 
rejected.  In  view  of  these  facts  it  is  difficult  to  escape 
the  conclusion  that  it  was  the  clear  intention  of  the 
Framers  to  make  the  action  of  the  President  and 
Senate  conclusive  in  all  cases;  and  to  give  to  all  self- 
executing  treaties  the  force  of  law  without  the  concur- 
rence of  Congress  as  a  whole,  whether  these  treaties 
disposed  of  subjects  enumerated  among  the  law-making 
powers  or  not.  If  an  exception  in  favor  of  the  subjects 
committed  to  Congress  had  been  intended,  the  failure  to 

10 120  U.  S.  704. 


TREATY-MAKING  POWER:    LIMITATIONS  153 

provide  for  it  in  precise  terms  is  inexplicable,  and  the 
absence  of  it  is  strongly  persuasive  evidence  that  no 
such  exception  was  intended  or  is  admissable.  The 
position  of  the  House  is  now,  however,  generally  fol- 
lowed in  practice,  and  the  question  has  become  more  or 
less  academic  in  view  of  the  fact  that  the  House  has 
never  refused,  and  is  not  likely  to  refuse,  to  join  with 
the  Senate  in  passing  any  legislation  thought  necessary 
to  carry  into  effect  or  affirm  treaty  obligations.  Never- 
theless, and  while  there  is  among  students  of  the  subject 
opinion  to  the  contrary,  I  have  no  doubt  that  the 
specific  delegation  of  certain  powers  to  Congress  in  no 
manner  limits  or  qualifies  the  authority  of  the  treaty- 
making  agencies  to  deal  with  the  same  subjects  except 
in  those  cases  where  some  particular  power  is  made 
exclusive  by  the  terms  or  implications  of  the  Constitu- 
tion, or  is  rendered  so  as  a  necessary  result  of  the  in- 
trinsic nature  of  the  power  itself. 

The  necessity  of  supplementary  action  to  carry  into 
operation  treaty  provisions  which  are  not  made  self- 
executing,  has  the  effect  of  authorizing  Congress  to 
legislate  upon  many  matters  which  would  be  beyond 
its  power  in  the  absence  of  a  treaty.  In  such  case  the 
authority  is  not  derived  from,  nor  is  it  limited  by,  the 
enumerated  subjects  of  legislation;  but  it  arises  from 
that  clause  of  the  Constitution  which  empowers  Con- 
gress "to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  department, 
or  officer  thereof."  The  power  exercised  in  any  such 


154    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

case  is  as  strictly  constitutional  as  in  the  case  of  the 
specifically  enumerated  powers,  but  occasion  for  legis- 
lative action  in  this  field  has  no  limits  except  those 
which  bound  the  treaty-making  power  itself.  The 
treaty-making  power  being  one  of  those  "vested  by  the 
Constitution  in  the  government  of  the  United  States," 
the  authority  of  Congress  to  pass  all  laws  to  carry  it 
into  execution  is  conferred  by  the  co-efficient  clause  in 
precise  and  definite  words. 

A  striking  example  of  the  exercise  of  this  power  is 
afforded  by  the  treaty  recently  concluded  between  our- 
selves and  Great  Britain  for  the  protection  of  migratory 
birds.  By  the  terms  of  this  treaty  closed  seasons  are  pro- 
vided for  various  sorts  of  birds  within  the  United  States 
and  the  Dominion  of  Canada;  and  the  contracting 
parties  mutually  bind  themselves  to  take,  or  propose  to 
their  respective  law-making  bodies,  necessary  measures 
for  insuring  the  execution  of  the  treaty.  In  pursuance 
of  this,  Congress  on  July  3  of  the  present  year  (1918) 
passed  an  act  to  give  effect  to  the  treaty,  and,  among 
other  provisions,  devolved  upon  the  Secretary  of  Agri- 
culture, with  the  approval  of  the  President,  the  author- 
ity to  make  regulations  in  detail  to  carry  out  the  general 
provisions  of  the  treaty.  Any  violation  of  the  treaty, 
or  the  act  of  Congress,  or  the  regulations,  is  made  an 
offense  punishable  by  fine  and  imprisonment.  In  the 
absence  of  the  treaty  it  is  clear  that  the  subject  is  one 
beyond  the  powers  of  Congress,  since  wild  game  is  not 
the  property  of  the  Nation  but  of  the  states  in  their 
public  capacity  for  the  common  benefit  of  their  people. 
Indeed,  an  act  of  Congress  dealing  with  the  subject  in 
a  similar  way  before  the  conclusion  of  the  treaty,  was 


TREATY-MAKING  POWER:    LIMITATIONS  155 

held  to  be  unconstitutional.11  The  subject,  however,  is 
one  in  which  the  two  countries  are  mutually  interested, 
and  the  evils  which  the  treaty  seeks  to  suppress  are  of 
common  concern.  Hence  the  matter  is  one  which  quite 
evidently  falls  within  the  treaty-making  power,  and  the 
act  of  Congress  comes  within  the  grant  of  the  co-efficient 
clause  as  a  law  "necessary  and  proper  for  carrying  into 
execution  .  .  .  powers  vested  ...  in  the  govern- 
ment of  the  United  States." 

No  theory  has  been  more  earnestly  debated  nor  has 
given  rise  to  more  pronounced  differences  of  opinion, 
than  that  which  challenges  the  validity  of  a  treaty 
stipulation  disposing  of  a  matter  which  otherwise  would 
fall  within  the  reserved  powers  of  the  states ;  and  espe- 
cially which  would  fall  within  their  police  powers.  In 
the  first  place,  it  is  necessary  to  carefully  distinguish 
this  proposition  from  another,  already  adverted  to, 
with  which  it  is  likely  to  be  confused,  namely,  that  the 
treaty-making  power  is  incompetent  to  deal  with  ques- 
tions exclusively  domestic.  The  difference  between  the 
two  is  apparent:  the  latter  is  based  upon  the  doctrine 
that  such  questions  are  not  proper  subjects  for  treaties 
under  any  circumstances;  the  former  upon  the  theory 
that  while  the  given  treaty  deals  with  matters  within 
the  general  scope  of  the  treaty-making  power,  they  are 
nevertheless  questions  withheld  from  the  United  States 
and  reserved  to  the  states  exclusively.  It  is  clear  that 
a  treaty,  in  order  to  be  valid,  must  have  a  legitimate 
international  reason  as  its  basis;  it  can  never  be  made 
the  medium  for  meddling  with  the  purely  internal 
affairs  of  one  of  the  contracting  nations.  But  assuming 

11  221  Fed.  288. 


156   CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

this  international  reason,  may  a  treaty  lawfully  stipu- 
late for  rights  or  privileges  which  but  for  the  treaty 
would  confessedly  be  exclusively  under  the  control  of 
the  state?  Let  me  repeat,  because  it  is  important  in 
this  connection,  that  the  treaty-making  power  was  never 
possessed  or  exercised  by  the  states  separately;  but 
was  originally  acquired  and  always  exclusively  held  by 
the  Nation,  and,  therefore,  could  not  have  been  among 
those  carved  from  the  mass  of  state  powers,  and  handed 
over  to  the  Nation.  But  the  Constitution  is  not  con- 
tent with  merely  confirming  this  power  to  the  Nation ; 
it  goes  further  and  expressly  prohibits  it  to  the  states. 
It  is,  therefore,  certain  that  whatever  else  may  be 
reserved  to  the  states  by  the  Tenth  Amendment,  no 
part  of  the  treaty-making  power  can  possibly  be  in- 
cluded. Necessarily,  then,  as  the  power  can  be  exer- 
cised only  by  the  national  government,  and  its  denial 
to  that  government  in  any  particular  is  equivalent  to 
forbidding  its  exercise  in  that  respect  altogether,  we  are 
forced  by  all  logical  rules  of  construction  to  conclude 
that  the  full  power  is  vested  in  that  government  except 
as  limited  by  the  prohibitions  of  the  Constitution,  by 
the  character  of  the  government  instituted,  or  by  the 
nature  of  the  power  itself.  Former  Senator  Root  has 
stated  the  matter  so  clearly  and  conclusively  that  I 
borrow  and  adopt  his  words.  He  said: 

"Legislative  power  is  distributed:  upon  some  subjects  the  national 
legislature  has  authority,  upon  other  subjects  the  state  legislature 
has  authority.  Judicial  power  is  distributed:  in  some  cases  the 
federal  courts  have  jurisdiction,  in  other  cases  the  state  courts  have 
jurisdiction.  Executive  power  is  distributed:  in  some  fields  the 
national  executive  is  to  act,  in  other  fields  the  state  executive  is  to 


TREATY-MAKING  POWER:    LIMITATIONS  157 

act.  The  treaty-making  power  is  not  distributed;  it  is  all  vested 
in  the  National  government;  no  part  of  it  is  vested  in  or  reserved  to 
the  states.  In  international  affairs  there  are  no  states;  there  is  but 
one  nation,  acting  in  direct  relation  and  representation  of  every 
citizen  in  every  state.  Every  treaty  made  under  the  authority  of 
the  United  States  is  made  by  the  National  government  as  the  direct 
and  sole  representative  of  every  citizen  of  the  United  States  residing 
in  California  equally  with  every  citizen  of  the  United  States  residing 
elsewhere.  It  is,  of  course,  conceivable  that,  under  pretense  of  exer- 
cising the  treaty-making  power,  the  President  and  Senate  might 
attempt  to  make  provisions  regarding  matters  which  are  not  proper 
subjects  of  international  agreement,  and  which  would  be  only  a 
colorable — not  a  real — exercise  of  the  treaty-making  power;  but 
so  far  as  the  real  exercise  of  the  power  goes  there  can  be  no  question 
of  state  rights,  because  the  Constitution  itself,  in  the  most  explicit 
terms,  has  precluded  the  existence  of  any  such  question." 

When  we  come  to  consider  that  the  treaty  power  is 
of  this  essentially  exclusive  character,  that  its  full  exer- 
cise necessarily  devolves  upon  the  general  government 
as  the  only  possible  agency,  and  that  in  its  legitimate 
exercise  the  certainty  of  an  occasional  collision  with 
state  affairs  must  have  been  foreseen,  the  claim  for  the 
supremacy  of  the  police  powers  of  the  state  must  be 
disallowed,  unless  we  are  willing  to  charge  the  framers 
of  the  Constitution  with  the  folly  of  conferring  a  power 
so  incompletely  that  its  exercise  in  many  important  and, 
perhaps,  in  some  vital,  particulars  may  be  precluded 
altogether.  The  matter  is,  after  all,  quite  simple,  and 
resolves  itself  into  the  question  whether  the  positive 
provisions  of  Article  VI  of  the  Constitution  mean  what 
they  seem  to  say?  By  this  article  treaties  made  under 
the  authority  of  the  United  States  are  declared  to  be 
the  supreme  law  of  the  land,  "anything  in  the  Constitu- 
tion or  laws  of  any  state  to  the  contrary  notwithstanding." 


158    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

Laws  of  the  United  States  made  in  pursuance  of  the 
Constitution  and  treaties  made  under  the  authority  of 
the  United  States  stand  upon  the  same  footing  of 
equality.  The  Constitution  and  laws  of  the  states  are 
expressly  made  subordinate  to  both.  No  language 
could  be  more  definite  or  final,  and  the  conclusion  is 
inevitable  that  a  treaty,  otherwise  valid  under  the  Con- 
stitution, is  not  rendered  invalid  because  it  conflicts 
with  some  provision  of  a  state  constitution  or  state  law. 
In  such  case,  the  repugnancy  being  shown,  both  can- 
not stand ;  and  Article  VI  solves  the  question  of  priority 
by  declaring  the  supremacy  of  the  treaty. 

If  it  be  necessary  to  have  confirmation  of  the  self 
evident,  it  may  be  borne  in  mind  that  one  of  the  prime 
reasons  for  the  incorporation  of  Article  VI  in  the  Consti- 
tution, so  far  as  it  applies  to  treaties,  was  that,  under 
the  Confederation,  treaties  had  been  notoriously  dis- 
regarded by  the  states,  and  state  laws  conflicting  with 
treaty  stipulations  granting  individual  rights  and  privi- 
leges had  been  enforced  by  the  state  governments.  The 
treaty  of  1783  by  which  peace  was  made  with  Great 
Britain  was  thus  openly  and  flagrantly  defied.  That 
treaty  provided  that  the  loyalists  whose  property  had 
been  confiscated  under  state  laws  should  be  compen- 
sated for  their  losses;  that  impediments  to  the  collec- 
tion of  debts  due  to  British  subjects  should  be  removed ; 
and  debts  paid  in  the  equivalent  of  British  money.  Not- 
withstanding these  solemn  engagements  on  the  part  of 
the  Nation,  some  of  the  states  passed  laws  which,  in 
effect,  nullified  them.  As  a  consequence,  the  British 
declined  to  surrender  certain  forts  which  they  had 
agreed  to  surrender.  The  Congress  of  the  Confedera- 


TREATY-MAKING  POWER:    LIMITATIONS  159 

tion  passed  resolutions  declaring  that  state  legislatures 
had  no  power  to  enact  laws  construing  treaties  or  re- 
straining or  controlling  their  operation,  or  execution, 
and  declaring  that  such  treaties  constituted  a  part  of  the 
law  of  the  land,  and  as  such  were  binding  upon  the  state 
legislatures. 

This  condition  of  affairs,  which  the  Confederation  was 
utterly  powerless  to  remedy,  was  the  occasion  of  appre- 
hensive solicitude  everywhere  among  thoughtful  men. 
To  permit  it  to  continue  was  to  sap  the  sovereignty  of 
the  Nation  and  render  it  contemptible  in  the  sight  of 
all  other  nations.  The  anomaly  of  a  sovereignty  with 
power  to  promise  but  none  to  perform  could  not 
endure.  Either  the  treaty-making  power  of  the  Nation 
must  be  made  supreme  in  fact  as  well  as  in  theory,  or 
the  complete  supremacy  of  the  states  and  the  disinte- 
gration of  the  Union  be  allowed  to  supervene.  A  divi- 
sion of  authority  in  a  matter  where  singleness  of 
authority  was  vital  had  become  intolerable  and  im- 
possible. The  power  to  make  treaties,  like  the  power 
to  wage  war,  was  something  which  the  Nation  must 
possess  beyond  the  peradventure  of  state  interference. 
The  intention  of  the  Framers  to  so  provide  cannot  be 
doubted,  since  a  necessity  so  pressing  could  not  be  put 
aside.  They  began  by  reaffirming  the  power  to  the 
Nation  and  made  assurance  doubly  sure  by  denying 
it  to  the  states.  And  then,  to  remove  all  possibility  of 
state  interference  through  the  exercise  of  any  conceiva- 
ble state  power,  they  declared  that  treaties  should  be 
the  supreme  law  of  the  land  "anything  in  the  Constitu- 
tion or  laws  of  any  state  to  the  contrary  notwithstand- 
ing." In  the  face  of  this  imperative  language,  to  insist 


160   CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

that  a  treaty  otherwise  valid  is  nevertheless  subject 
to  the  controlling  force  of  a  law  passed  in  pursuance 
of  the  police  powers  of  a  state,  is  to  blot  out  the  words 
"anything  notwithstanding"  and  substitute  "nearly  any- 
thing notwithstanding,"  and  to  convert  that  which  is 
declared  without  reservation  to  be  supreme  into  some- 
thing subject  and  subordinate. 

That  the  supremacy  clause  was  absolute  was  clearly 
the  opinion  of  those  who  framed  it,  and  those  who  par- 
ticipated in  its  adoption.  Thus,  James  Wilson,  in  the 
Pennsylvania  Ratifying  Convention,  after  calling  atten- 
tion to  the  repeated  violations  of  the  British  treaty  by 
the  passage  of  counteracting  state  legislation,  declared 
that  this  clause  would  show  the  world  that  we  secure 
the  performance  of  treaties  no  longer  nominally  but 
effectively,  "let  the  legislatures  of  the  different  states 
do  what  they  may."12  And  Mr.  Madison  in  the  Virginia 
Convention,  asserting  the  supremacy  of  a  treaty  over 
state  laws,  said:  "If  it  does  not  supersede  their  existing 
laws,  as  far  as  they  contravene  its  operation,  it  can- 
not be  of  any  effect.  To  counteract  it,  by  the  supremacy 
of  the  state  laws,  would  bring  on  the  Union  the  just 
charge  of  national  perfidy,  and  involve  us  in  war."  1S 

The  decisions  of  the  Supreme  Court  are  in  clear 
support  of  the  view  here  contended  for.  Mr.  Justice 
Chase  in  Ware  vs.  Hylton,  decided  in  1796,  said:  "A 
treaty  cannot  be  the  supreme  law  of  the  land,  that  is  of 
all  the  United  States,  if  any  act  of  a  state  legislature 
can  stand  in  its  way."  State  laws  and  Constitutions 
contrary  to  the  treaty  of  1783,  then  under  consideration, 

11  2  Elliott's  Debates,  489-90. 
18  3  Elliott,  515. 


TREATY-MAKING  POWER:    LIMITATIONS  161 

were,  by  virtue  of  the  supremacy  clause,  he  graphically 
declared,  "prostrated  before  the  treaty."  A  compre- 
hensive review  of  the  cases  which  followed  would  extend 
this  discussion  quite  beyond  the  limits  I  am  obliged  to 
observe,  and  it  is,  moreover,  unnecessary  since  that 
service  has  already  been  fully  performed  by  Mr.  Butler 
in  his  scholarly  work  on  the  "Treaty-Making  Power,  "and 
by  Professor  Corwin  in  his  brilliantly  convincing  book 
entitled  "National  Supremacy." 

The  most  elaborate  as  well  as  the  ablest  presentation 
of  the  opposing  view  of  the  question,  is  that  contained 
in  the  recent  work  of  Henry  St.  George  Tucker — "Limi- 
tations on  the  Treaty-Making  Power."  Mr.  Tucker,  as 
a  result  of  his  own  analysis  and  a  review  of  the  authori- 
ties, concludes  (p.  339)  that,  "no  essential  power  of  a 
state,  whether  a  reserved  power  or  a  police  power,  can 
by  reasonable  construction  be  constitutionally  taken 
from  it,  in  furtherance  of  the  treaty-making  power." 

Now,  in  one  sense,  it  is  quite  correct  to  say  that  no 
essential  power  can  be  taken  from  a  state  in  furtherance 
of  the  treaty-making  power.  A  treaty  stipulation  to 
the  effect  that  the  states  should  no  longer  have  the 
power  to  enact  laws  to  safeguard  the  public  health, 
for  example,  would  be  utterly  void,  just  as  an  act  of 
Congress  so  providing  would  be  utterly  void;  but  a 
state  statute  enacted  under  this  police  power,  which 
conflicts  with  a  treaty  provision  on  the  same  subject, 
concededly  valid  in  other  respects,  must  yield  to  the 
supremacy  of  the  treaty,  just  as  it  must  in  similar  cir- 
cumstances yield  to  the  supremacy  of  an  act  of  Con- 
gress passed  in  pursuance,  let  us  say,  of  the  authority 
to  regulate  commerce.  In  the  latter  case,  it  would  be 


1 62    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

no  answer  to  the  claim  of  supremacy,  as  the  Supreme 
Court  has  held,  to  assert  that  the  statute  was  enacted 
under  the  police  power,  for,  as  the  court  proceeded  to 
say:  "It  is  clear  from  the  nature  of  our  complex  form 
of  government,  that  whenever  the  statute  of  a  state 
invades  the  domain  of  legislation  which  belongs  exclu- 
sively to  the  Congress  of  the  United  States  it  is  void, 
no  matter  under  what  class  of  powers  it  may  fall,  or 
how  clearly  allied  to  powers  conceded  to  belong  to  the 
states."  u  That  this  is  also  true  in  the  case  of  treaties 
which  are  equally  the  supreme  law,  was  clearly  the 
opinion  of  Chief  Justice  Marshall,  who  said :  "In  every 
such  case  the  act  of  Congress  or  the  treaty  is  supreme, 
and  the  laws  of  the  state,  though  enacted  in  the  exer- 
cise of  powers  not  controverted  must  yield  to  it."  15 
The  powers  reserved  to  the  states  are 'not  reserved 
against  the  powers  of  the  United  States,  but  in  harmony 
with  and  in  subordination  to  every  such  power.  The 
Tenth  Amendment  read  in  connection  with  the  supre- 
macy clause  can  mean  nothing  else. 

The  conclusion  to  which  we  have  come  is  of  great 
practical  importance,  for  if  the  claim  of  supremacy  for 
state  police  power  over  treaties  be  conceded,  we  are 
certain,  sooner  or  later,  to  become  involved  in  conflict, 
as  we  have  already  been  in  controversy  with  other 
nations.  The  contention  over  the  exclusion  of  the 
Japanese  from  the  public  schools  in  California  and 
later  over  the  land  question  are  still  fresh  in  our  minds. 
Only  the  exercise  of  great  tact,  forbearance  and  patience 
on  the  part  of  the  responsible  officials  of  both  countries, 


14  92  U.  S.  259. 

"  Gibbons  vs.  Ogden,  9  Wheat  210. 


TREATY-MAKING  POWER:    LIMITATIONS  163 

prevented  an  embarrassing  situation  from  becoming 
dangerously  critical.  Whether  the  proper  construction 
of  the  treaty  involved  would  justify  the  claims  of  the 
Japanese  government  or  those  of  California  is  fairly 
open  to  question ;  but  that  the  treaty-making  power  of 
the  United  States  is  competent  to  accord  the  privileges 
which  were  claimed  for  the  subjects  of  Japan  is  not,  in 
my  judgment,  open  to  legitimate  dispute.  Not  only 
is  it  clear  that  state  constitutions  and  state  laws,  of 
whatsoever  character,  must  yield  in  case  of  conflict; 
but  an  opposite  conclusion  would  be  gravely  unfortu- 
nate, since  it  would  place  it  in  the  power  of  a  state  to 
over-ride  and  confound  the  national  will  in  matters 
where  the  opportunities  of  the  national  authorities  for 
accurate  and  dependable  determinations  are  far  better 
than  those  of  the  state  authorities,  who,  not  realizing 
the  delicacy  of  the  questions  involved,  might  bring  the 
Nation  to  the  verge  of  war  in  an  effort  to  uphold  the 
policies  of  a  single  state.  The  story  of  the  conditions 
in  this  respect  under  the  Confederation  constitutes  a 
warning  which  we  can  never  afford  to  disregard. 

That  there  should  ever  have  been  any  doubt  as  to 
the  complete  supremacy  of  the  national  power  in  all 
matters  of  foreign  relation  is  an  anomaly  that,  under  the 
new  and  enlarged  world  responsibilities  we  are  assum- 
ing, is  no  longer  tolerable.  The  eyes  of  foreign  govern- 
ments see  only  the  Nation.  State  boundaries  are  as 
meaningless  to  them  as  county  boundaries  in  Great 
Britain  are  to  us.  In  Chisholm  vs.  Georgia,  Mr.  Justice 
Wilson  said:  "As  to  the  purposes  of  the  Union,  there- 
fore, Georgia  is  not  a  sovereign  state;"  to  which  may 


1 64    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

be  added :  and  for  the  purposes  of  external  sovereignty 
the  state  of  Georgia  does  not  exist. 

If  an  American  citizen  should  suffer  outrage  at  the 
hands  of  a  mob  in  Devonshire,  or  the  County  Cork,  we 
should  look  to  London  for  satisfaction.  If  an  English- 
man be  similarly  maltreated  in  Maine  or  Colorado,  it  is 
incomprehensible  that  Washington  may  not  be  held 
internationally  accountable.  Concede  the  theory  of 
state  supremacy,  however,  and  the  treaty  rights  of  a 
foreigner  may  be  grossly  violated  by  the  action  or 
through  the  neglect  of  a  state  without  remedy  or  re- 
dress— the  Nation  taking  refuge  behind  the  claim  of 
state  sovereignty  and  the  state  escaping  because  it  is 
not  an  international  person  nor  bound  by  the  treaty. 
The  suggestion  is  not  fanciful.  In  1880  certain  Chinese, 
resident  in  Colorado,  were,  because  of  their  race,  bru- 
tally assaulted  and  murdered  and  their  property  de- 
stroyed by  a  mob.  The  Secretary  of  State,  replying  to 
the  Chinese  Minister,  asserted  the  utter  helplessness  of 
the  national  government  in  the  matter.  The  same 
thing  occurred  in  the  case  of  certain  Italians  who  were 
the  victims  of  mob  violence  in  Louisiana. 

But  it  is  not  true  that  the  national  government  is 
thus  powerless  to  vindicate  its  treaty  obligations. 
Neither  in  the  enforcement  nor  in  the  making  of  treaties 
is  it  limited  by  or  dependent  upon  state  power.  It  is 
the  government  of  a  completely  sovereign  Nation,  pos- 
sessing, in  the  exercise  of  its  powers,  jurisdiction  over 
every  foot  of  territory  and  direct  authority  over  every 
citizen  within  its  limits.  Within  the  scope  of  its  powers 
it  may  move  without  regard  to  state  lines  or  state  func- 
tionaries or  state  laws  or  constitutions,  sweeping  aside 


TREATY-MAKING  POWER:    LIMITATIONS  165 

every  obstacle  sought  to  be  interposed  by  individual 
or  state  authority,  compelling  obedience  with  all  the 
powers  of  an  unfettered  hand,  and  answerable  for  what 
it  does  to  the  people  of  the  Nation  alone. 

If  the  perpetrators  of  violence  against  the  person  and 
property  of  the  foreigner  living  under  the  protection 
of  our  flag  have  gone  unpunished,  it  is  not  from  lack  of 
power  but  from  lack  of  action  on  the  part  of  the 
national  government.  The  power  of  that  government 
is  ample.  It  may  by  legislation  penalize  individuals 
who  conspire  to  interfere  with  or  violate,  or  who  par- 
ticipate in  the  actual  interference  with,  or  violation,  of 
treaty  rights  and  privileges;  it  may  use  the  army  of  the 
United  States  and,  if  necessary,  call  forth  the  state 
militia  itself,  to  enforce  this  legislation,  and  preserve 
these  rights  and  privileges;  it  may  invoke  the  powers 
of  the  national]  courts  to  restrain  violations  and  inter- 
ferences in  cases  where  that  remedy  is  appropriate.  In 
one  way  or  in  another  whatever  the  government  of  the 
United  States  has  the  right  to  promise  it  has  the  power 
to  enforce.  If  not,  the  weaknesses  of  the  Confederation 
were  exposed  and  denounced  in  vain ;  and  the  declared 
purpose  of  the  Constitution  "to  form  a  more  perfect 
Union"  has  failed  of  realization  in  one  of  its  most  vital 
phases. 


CHAPTER  VIII 
AFTER  THE  WAR 

The  theory  of  governmental  power  which  has  been 
presented  and  examined  in  the  course  of  the  discussions 
now  to  be  concluded,  will  grow  in  practical  importance 
as  we  come  to  deal  with  the  international  problems 
resulting  from  and  following  the  war.  We  have  been 
fighting,  we  are  told,  to  make  the  world  safe  for  democ- 
racy, to  vindicate  and  insure  the  rights  of  small  nations, 
to  rid  the  world  of  autocracy  and  put  an  end  to  military 
despotism.  This  is  a  recital  of  high  and  splendid  aims 
for  which  to  fight,  but  it  is,  nevertheless,  an  ideal  and 
elusive  generalization  which  inspires  the  soul  without 
informing  the  understanding  with  any  degree  of  pre- 
cision in  respect  of  the  things  which  must  be  done  to 
bring  about  its  realization.  It  is  quite  obvious  that  a 
convention  simply  pledging  the  high  contracting  parties 
to  keep  the  world  safe  for  democracy,  and  free  from 
autocracy  and  military  despotism,  and  to  preserve  the 
rights  of  small  nations,  would  be  as  fluid  and  unstable 
as  the  provisions  of  a  statute  commanding  everybody  in 
general  terms  to  be  good  and  honest  under  penalty  of 
severe  punishment.  The  fighting  has  come  to  an  end  and 
we  are  now  confronted  with  the  necessity  of  putting  con- 
crete propositions  into  a  treaty  of  peace,  and  none  of  these 
are  concrete  things.  Whether  they  shall  hereafter  be 
realized  will  depend  not  upon  any  fine  statements  of 
principle,  but  upon  definite,  practical,  concrete  stipu- 


AFTER  THE  WAR  167 

lations,  and  upon  the  possession  of  power  of  some  kind 
somewhere  to  enforce  them. 

Our  burden  of  responsibility  will  not  be  ended  with 
the  signing  of  the  treaty.  In  truth,  it  may  well  be,  it 
will  only  then  fairly  begin;  and  it  is  sure  to  be  of  far- 
reaching  scope  and  long  continued.  At  the  peace  table 
we  shall  assist  in  readjusting  the  geography  of  Europe. 
We  shall  aid  in  formulating  international  policies  des- 
tined to  revolutionize  the  relationships  of  the  civilized 
world.  And  hereafter,  as  long  as  the  Nation  endures, 
we  shall  never  be  absent  from  the  international  council 
chamber  when  great  affairs  are  to  be  debated  and 
settled.  If  it  be  unfortunate  to  thus  finally  break  with 
the  condition  of  splendid  isolation  which  has  hitherto 
been  our  boast  and  comfort,  it  is  vain  to  lament  the 
fact;  for  that  volume  of  our  history  is  closed  and  the 
new  volume  is  opened  in  which  to  trace  the  record  of 
greater  achievements  in  broader  fields.  But  to  him 
who  loves  his  country  and  glories  in  her  past;  who  re- 
views with  satisfaction  the  successive  steps  by  which  she 
has  grown  from  thirteen  straggling,  loosely  related  com- 
munities of  fishermen  and  planters  and  traders  into 
forty-eight  compact  commonwealths  knit  together  in 
one  great  empire  with  bands  lighter  than  gossamer  but 
more  enduring  than  steel;  who  re-reads  the  story  of 
devoted  sacrifice  by  which  the  Union  was  made  a 
definite  reality,  and  later,  and  no  less  inspiring,  that  by 
which  the  oppressed  subjects  of  an  Old  World  power 
were  converted  into  the  free  citizens  of  a  New  World 
republic,  and  who  feels  the  thrill  of  supreme  faith  in 
her  destiny  of  leadership  and  in  the  crystalline  purity 
of  all  her  motives;  who  believes  that  nations,  like  men, 


168    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

are  made  strong  by  bearing  burdens  and  not  by  shirking 
them — to  such  an  one  the  sense  of  these  new  responsi- 
bilities will  come  with  a  new  sweep  of  exultation  that 
his  country  is  again  afforded  opportunity  for  service  in 
a  world  where  all  too  seldom  strength  and  unselfishness 
have  gone  together. 

This  war  marks  the  end  of  an  old  order  and  the 
beginning  of  a  new  one,  as  surely  and  in  many  ways  as 
profoundly,  as  did  the  birth  and  life  of  Christ  two 
thousand  years  ago.  This  we  realized  only  dimly  and 
inadequately  as  the  vast  and  hideous  panorama  un- 
rolled before  our  vision.  The  spiritual  meaning  of  it 
all  will  begin  to  penetrate  our  minds  only  after  the  final 
adjustments  of  peace  shall  have  been  completed  and 
we  are  able  to  review  it  in  retrospect.  Of  all  those 
who  lived  in  the  time  of  Christ,  how  few  suspected  that 
the  world  would  be  swept  as  with  a  flame  and  cleansed 
by  the  events  which  to  them  registered  only  the  pass- 
ing of  a  cult!  The  social,  political,  and  spiritual  results 
of  the  great  tragedy  through  which  we  have  so  pain- 
fully passed  will  affect  the  destinies  of  mankind  to  an 
incalculable  degree  to  the  end  of  time.  It  is,  therefore, 
certain  that  our  own  institutions  will  be  affected,  our 
outlook  upon  life  profoundly  altered,  and  our  duties 
radically  enlarged;  and  that,  necessarily,  we  shall  be 
called  upon  to  do  and  participate  in  the  doing  of  many 
things  hitherto  unknown  in  our  polity. 

We  have  for  nearly  a  century  and  a  half,  with  occa- 
sional interruptions,  been  like  some  far-off  pioneer, 
whose  relations  to  his  neighbors — few  and  widely  sep- 
arated— are  limited  to  the  routine  of  periodical  visits 
with  an  occasional  quarrel  over  grazing  lands  or  the 


AFTER  THE  WAR  169 

exact  location  of  a  line  fence.  When  he  moves  into 
town  he  discovers  that  he  and  his  neighbors  have  recip- 
rocal duties  and  responsibilities  of  every-day  concern. 
In  a  similar,  though  larger,  way  we  have  now  moved 
into  the  world  of  closer  international  relations,  and  shall 
discover  that  we  have  assumed  the  duties  and  have 
become  entitled  to  the  benefits  of  community  life. 
Geographically,  we  are  still  bounded  by  the  two  oceans 
and  by  Canada  and  Mexico,  except  for  a  few  outlying 
possessions;  politically,  our  frontiers  will  hereafter  be 
wherever  our  national  interests  and  responsibilities 
mark  them.  Who  could  have  foreseen  in  July,  1914, 
that  by  a  series  of  incidents  following  one  another  and 
all  following  the  assassination  of  an  archduke  at  Sara- 
jevo, we  should  four  years  later  be  battling  to  the  limit 
of  our  strength  upon  the  soil  of  Europe,  three  thousand 
miles  across  the  sea?  Steam  and  electricity  and  the 
conquest  of  the  air  have  shriveled  distance  and  brought 
the  far  places  of  the  earth  very  near  together,  until  no 
spot  remains  beyond  the  possibility  of  our  interest. 
However  remote  the  contingency  may  now  seem,  it  is 
always  possible  that  our  own  fate  may  be  greatly  in- 
volved in  some  seemingly  trivial  happening,  half  the 
world  away. 

We  have  many  times  been  led  by  events  that  no 
human  foresight  could  anticipate,  and  no  human  power 
could  control;  and  so  we  may  be  led  again.  We  have 
builded  many  structures  which  we  did  not  ourselves 
design;  and  we  may  build  many  more.  But  this  does 
not  mean  that  we  are  at  the  mercy  of  blind  chance. 
Fatalism  is  the  doctrine  of  indolence  and  cowardice. 
It  would  be  vain  to  deny  that  the  movements  of  man- 


170    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

kind,  individually  and  collectively,  are  subject  to  a 
certain  degree  of  constraint  which  they  are  unable  to 
avoid.  Individuals,  sometimes,  are  swept  onward  by 
forces  they  are  too  feeble  to  resist.  Nations,  sometimes, 
follow  currents  from  which  they  cannot  escape  and 
which  they  are  powerless  to  turn  aside.  We  are,  in  a 
sense,  all  of  us,  big  and  little,  large  nations  and  small, 
in  the  great  stream  which  flows  irresistibly  toward  un- 
known ports.  We  shall  be  borne  upon  its  bosom  what- 
ever we  do;  but  foresight  will  help  us  to  avoid  the 
rocks  which  ever  and  again  loom  threateningly  in  the 
channel,  and  skill  and  courage  will  help  us  through  the 
rapids  into  which  we  shall  from  time  to  time  be  drawn, 
and  bring  us  finally  past  them  all  to  such  open  waters 
as  in  the  wisdom  and  goodness  of  God  it  is  intended  we 
shall  come. 

In  the  course  of  the  adventurous  voyage  upon  which 
we  are  embarked  we  have  reached  the  point  where  we 
must  sail  in  closer  contact  with  other  ships  of  the  fleet. 
In  other  words,  the  period  of  national  detachment  has 
ended  and  that  of  international  cooperation  has  super- 
vened. The  other  nations  with  whom  we  shall  cooperate 
will  want  to  know,  and  will  have  a  right  to  know,  not 
only  the  things  we  think  should  be  included  in  the  new 
order,  but  what  we  are  willing  and  able  to  do  upon  our 
part  toward  their  consummation.  We  have  become 
too  closely  and  vitally  involved  in  the  tangle  of  inter- 
national problems  to  any  longer,  or  ever  again,  stand 
apart.  It  would  not  only  be  a  great  embarrassment, 
but  a  great  misfortune,  if  it  should  transpire  that  there 
is  anything  which  we  ought  but  which,  for  lack  of  con- 
stitutional power,  we  are  unable  to  do.  The  importance 


AFTER  THE  WAR  17 1 

of  conceding  to  the  national  government  the  full  mea- 
sure of  power  which  it  has  been  the  main  purpose  of  the 
preceding  discussions  to  sustain,  is  clearly  apparent. 
The  time  is  fast  approaching,  if  it  be  not  already  here, 
when  we  must  be  able  to  assert  and  maintain  for  that 
government  the  unimpaired  powers  of  complete  exter- 
nal sovereignty.  We  must  not — we  cannot — enter  upon 
this  field  of  amplified  activity  with  half-developed  limbs. 
The  complete  powers  of  the  governments  of  other  na- 
tions must  be  matched  by  the  complete  powers  of  our 
own  government.  Upon  this  enlarged  stage  of  inter- 
national negotiation  and  cooperation  we  cannot  afford 
to  play  the  part  of  a  political  cripple.  Our  government 
must  come  to  its  new  tasks  not  only  with  full,  but  with 
unquestioned  powers.  To  be  obliged  to  confess,  when 
called  upon  to  deal  with  some  novel  but  vital  matter, 
that  the  government  lacked  sufficient  authority,  be- 
cause of  the  absence  of  affirmative  language  in  the 
Constitution,  would  be  most  humiliating  and  regret- 
table; and  to  find  the  power  only  after  a  microscopic 
search  of  that  instrument,  and  a  strained  or  doubtful 
interpretation  of  its  words,  would  be  almost  as  unfor- 
tunate. Any  theory  of  constitutional  construction 
which  leads  to  such  a  result  will  not  bear  analysis  and 
must  be  rejected. 

The  task  of  the  soldier  is  finished  and  that  of  the 
statesman — less  bloody  but  no  less  difficult — has  begun. 
The  war  has  answered  many  questions,  but  it  has  asked 
and  will  ask  more  than  it  has  answered.  The  precise 
nature  of  many  of  these  interrogatories  lies  in  the  womb 
of  the  future,  beyond  the  wisdom  of  the  wisest  to  fore- 
know; but  the  reply  may  affect  us  for  good  or  ill  for  all 


172    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

time.  It  does  not  now,  for  example,  seem  probable  that 
we  shall  ever  acquire  territory  or  be  called  upon  to 
exercise  governmental  control  anywhere  on  the  Eastern 
continent,  but  in  the  light  of  our  acquisition  of  the 
Philippines,  who  can  undertake  to  deny  the  possibility 
of  even  such  a  contingency  as  this?  However  that  may 
be,  it  is  certain  that  we  shall  feel  the  weight  of  our  extra- 
territorial responsibilities  in  many  unaccustomed  ways. 
In  this  broadened  field  of  endeavor  we  must  cease  to 
think  in  terms  of  states  and  states'  rights  and  think 
only  in  terms  of  nationality.  We  must  cease  to  measure 
the  authority  of  the  general  government  only  by  what 
the  Constitution  affirmatively  grants,  and  consider  it 
also  in  the  light  of  what  the  Constitution  permits  from 
failure  to  deny.  There  is  no  danger  that  we  shall 
thereby  destroy  the  reserved  rights  of  the  states,  or 
overrun  the  domain  of  local  government — against  these 
unfortunate  consequences  we  must  always  be  on  our 
guard — but  we  shall  avoid  the  unspeakably  absurd  con- 
fusion of  having  an  agency  to  speak  for  us  upon  all 
matters  of  legitimate  international  concern  with  a 
vocabulary  so  limited  that  upon  some  of  them — and,  in 
the  light  of  our  expanded  world  relations,  not  incon- 
ceivably the  most  vital  of  them — it  cannot  speak  at  all. 
While  it  is  impossible  to  anticipate  all  the  external 
problems  with  which  we  shall  hereafter  be  called  upon 
to  deal,  some  of  them  lie  very  clearly  before  us.  First 
and  most  important  is  that  of  the  public  defense.  We 
have  been  in  the  habit  of  expressing  our  hopes  by  saying 
that  this  was  a  war  to  end  war;  and  there  are  some 
who  have  convinced  themselves  that,  it  having  been 
won  by  the  Allied  nations,  the  world  will  enter  upon  an 


AFTER  THE  WAR  173 

era  of  everlasting  peace.  That  the  complete  overthrow 
of  the  Central  Powers  will  be  followed  by  an  indefinitely 
long-continued  period  of  peace  is  most  likely,  but  that 
war  will  never  again  be  waged  is  a  conclusion  not  only 
without  substantial  warrant,  but  one  the  indulgence  of 
which  will  constitute  for  us  a  seriously  dangerous  delu- 
sion. The  causes  of  war  among  nations  and  peoples  lie 
very  deep  in  the  nature  of  mankind — far  deeper  than 
armaments  or  land  hunger  or  kings  or  capitalists  or 
forms  of  government.  Like  the  impulses  to  sin  they 
are  protean,  but  unlike  these  they  frequently  spring 
from  sentiments  of  the  most  sacredly  justifying  charac- 
ter. Man  is  a  fighting  animal,  and  in  the  last  analysis, 
in  response  to  emotions  stronger  than  himself,  will  fight 
for  the  things  he  holds  dear.  The  fighting  spirit  is  one 
which  it  is  to  be  hoped  we  shall  never  lose;  for  directed 
along  right  channels  it  is  as  necessary  as  the  spirit  of 
peace.  It  is  not  enough  for  a  nation  to  desire  justice, 
it  must  have  the  will  and,  when  needed,  the  power  to 
enforce  it.  As  time  goes  on,  war  between  nations  will 
become  less  and  less  frequent.  So  much  is  indicated  by 
the  course  of  past  history;  but  the  same  history  dem- 
onstrates that  forces  are  at  work  in  the  world  stronger 
than  the  desires  of  any  portion  of  humanity — forces  that 
generally  do  not,  and  generally  will  not,  succeed  in 
driving  us  out  of  the  paths  of  peace,  but  which  now  and 
then  have  swept,  and  will  again,  sometimes,  sweep  us 
with  a  tempest  of  passion  into  the  chaos  of  war.  It  is 
right  that  we  should  teach  the  desirability  of  peace,  and 
that  we  should  teach  it  intensely  and  continuously ;  but 
we  should,  at  the  same  time,  keep  before  ourselves 
always  the  clear  danger  of  war,  and  at  our  peril  be  pre- 


174   CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

pared  to  meet  it.  Not  to  do  so  is  to  dwell  in  the  same 
fool's  paradise  which  is  occupied  by  the  individual  who 
imagines  that  he  can  always  maintain  his  rights  and 
his  comfort  without  effort  on  his  own  part  to  do  so. 
The  dove  is  a  pacifist ;  the  eagle  is  not.  The  dove  falls 
a  victim  to  rapacity ;  the  eagle  is  immune — not  because 
of  their  differing  views  on  the  subject  of  pacifism  but 
because  one  is  weak  and  timid  and  the  other  is  strong 
and  self-reliant.  And  it  is  not  the  dove,  let  me  remind 
you,  but  the  eagle  which  symbolizes  the  spirit  of 
America:  Yield  nothing  to  the  aggressor!  A  nation, 
like  a  man,  must  carefully  distinguish  between  the  de- 
sire for  peace  which  springs  from  a  timid  soul,  anxious 
only  to  be  safe,  and  that  which  comes  from  a  stout 
heart  seeking  the  way  of  righteousness.  There  are  two 
kinds  of  men,  equally  detestable:  he  who  seeks  a  fight 
because  he  is  a  bully,  and  he  who  avoids  a  fight  because 
he  is  a  coward.  As  with  a  man,  so  with  a  nation,  the 
course  of  wisdom  and  rectitude  is  neither  to  seek  nor 
run  away  from  a  conflict  but  to  stand.  If  I  were  able 
to  transcend  the  limitations  of  time  and  anticipate  the 
final  verdict  of  history  upon  my  countrymen,  I  would 
have  it  written  in  words  of  everlasting  light:  They  re- 
spected the  liberties  of  others  because  they  were  just,  and 
kept  their  own  because  they  were  strong  and  resolute. 

Let  us  not  permit  our  judgment  to  be  unduly  influ- 
enced by  our  desires.  We  are  still  a  long  way  from  that 
millennium  of  the  poet's  vision  which  is  to  witness  the 
permanent  retirement  of  the  war  drum  and  the  battle 
flag;  and  until  that  long-desired  and  blessed  event  shall 
have  come  to  pass,  it  will  be  well  for  us  to  shape  our 
course  upon  the  theory  that  in  our  intercourse  with 


AFTER  THE  WAR  175 

other  nations  days  of  stress  are  sure  to  come,  when  the 
grim  semper  paratus  of  our  battleships  and  armies,  as  of 
old,  will  be  more  effective  than  a  soft  answer  to  turn 
away  wrath.  The  freeman's  peace  is  something  more 
than  the  absence  of  war.  A  state  of  war  is  always 
dreadful,  but  it  is  a  sweet  and  holy  thing  compared 
with  a  peace  of  ignoble  capitulation  to  wrong.  No 
properly  constituted  man  loves  war  for  its  own  sake  but, 
sometimes, 

"He  needs  must  fight 
To  make  true  peace  his  own; 
He  needs  must  combat  might  with  might, 
Or  might  would  rule  alone." 

And  this,  being  granted,  necessarily  establishes  the  wis- 
dom of  a  policy  of  military  readiness,  in  order  that  a 
true  peace  may  be  made  more  certain  of  attainment. 

Preparedness  for  national  defense  is  not  confined  to 
military  preparation  alone,  though  obviously  that  is  a 
matter  of  chief  importance  for  which  there  is  no  sub- 
stitute. In  addition,  however,  there  is  need  of  that 
intellectual  and  spiritual  training  which  will  bring  to 
the  individual  a  clear  comprehension  of  the  nature  and 
quality  of  our  institutions,  and  an  abiding  sense  of  the 
importance  of  their  protection  against  destructive  or 
deteriorating  assaults  on  the  part  of  enemies  from  with- 
out or  from  within  our  borders.  It  is  highly  desirable 
that  we  should  keep  alive  the  new  spirit  of  nationalism, 
which  has  been  born  of  the  war,  and  which  is  fast  fusing 
the  heterogeneous  groups  of  German-Americans  and 
Irish- Americans  and  other  hyphenated  tribal  collections 
into  a  homogeneous  body  of  American  citizens  who  are 


176    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

for  the  first  time  beginning  to  realize  their  essential 
unity.  If  no  other  benefit  should  result  from  the  dread- 
ful struggle,  the  firm  establishment  of  this  new  spirit  of 
national  concord  would  justify  every  sacrifice  we  have 
made,  or  might  have  been  called  upon  to  make,  how- 
ever terrible;  for  it  is  certain  that  only  thus  have  we 
been  brought  to  an  understanding  of,  and  a  deliverance 
from,  the  sinister  peril  of  a  divided  allegiance  which 
threatened  our  very  existence  as  a  separate  and  inde- 
pendent people. 

The  false  doctrine  that  patriotism  is  a  narrow  and 
provincial  trait  incompatible  with  our  duty  to  mankind 
in  general  should  never  again  be  permitted  to  go  with- 
out vigorous  challenge.  Patriotism  is  something  far 
older  than  our  institutions  and  far  stronger  than  any 
impulse  to  individual  preservation ;  for  men  in  all  ages 
have  willingly  sacrificed  themselves  in  untold  numbers 
in  response  to  its  appeal.  It  is  the  sentiment  which 
binds  the  people  of  a  country  together  for  the  common 
good  and  the  common  defense,  without  which  they 
would  perish;  and  so  clearly  necessary  is  it  to  their 
continued  existence  as  an  independent  unit  of  society 
that  if  it  were  not  an  instinctive  attribute  of  the  soul, 
it  would  be  necessary  to  develop  it  by  artificial  means. 

That  form  of  internationalism  which  teaches  that  the 
stranger  beyond  our  gates  should  be  the  object  of  our 
solicitude  equally  with  the  loved,  mutually  helpful  mem- 
bers of  our  own  household  is  not  sound  sentiment  but 
maudlin  sentimentality.  The  form  of  internationalism 
in  which  I  believe  is  that  of  cordial  cooperation  among 
nations  for  the  welfare  and  betterment  of  the  people  of 
all  lands,  but  which  will  always  look  first  to  the  welfare 


AFTER  THE  WAR  177 

and  betterment  of  our  own.  The  more  scrupulously  we 
care  for  our  own,  the  more  strongly  will  they  be  dis- 
posed to  care  for  others.  A  helping  hand  is  like  the 
quality  of  mercy — "it  is  twice  blessed,  it  blesses  him 
that  gives  and  him  that  takes;"  and  a  people  blessed 
with  receiving  much  will  not  forego  the  blessing  which 
comes  from  giving  much.  But  it  would  mean  very 
little  to  be  an  American  if  a  thin  fondness  for  all  the 
tribes  of  men  should  be  substituted  for  that  passionate 
love  of  country  and  that  flaming  devotion  to  her  flag, 
which  brought  the  flower  of  the  Nation  to  the  sacrificial 
fields  of  France  as  to  a  place  of  great  privilege. 

There  is  also  a  material  preparedness  which  it  will  be 
perilous  to  neglect.  The  war  has  taught  us,  as  we  have 
never  been  taught  before,  the  necessity  of  building  up 
and  rendering  permanently  dependable  our  material  re- 
sources, so  that  we  may  be  entirely  independent  of 
other  countries  for  all  necessary  supplies  in  time  of  war. 
It  not  only  must  never  be  possible  for  any  other  nation 
to  suspend  above  our  heads  the  dreadful  menace  of 
starvation,  which  hung  suspended  for  so  many  anxious 
weeks  above  Great  Britain  while  the  submarine  was 
gaining  upon  the  shipyard;  but  it  must  never  be  pos- 
sible for  us  to  be  deprived  of  any  necessary  or  useful 
commodity,  if  from  any  cause  its  importation  shall  be 
prevented.  To  increase  the  output  of  our  products  in 
all  the  fields  of  industry,  and  make  secure  its  continu- 
ance by  reasonable  and  fostering  legislation  is  not  only 
wise  economic  policy  in  time  of  peace  but  may  prove  a 
bulwark  of  defense  in  time  of  war. 

But  spiritual  and  material  preparation  will  be  of 
little  avail  against  the  evil  consequences  of  war  without 


178    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

military  preparedness  as  well ;  and  even  the  addition  of 
military  preparedness  will  not  suffice  unless  it  be  thor- 
oughgoing. If  Great  Britain  in  1914  had  been  able  to 
mobilize  a  great  army  as  quickly  as  she  was  able  to 
mobilize  her  great  navy,  either  there  would  have  been 
no  war  or  it  would  quickly  have  been  over.  If  we  had 
done  our  duty  in  the  past  instead  of  grossly  neglecting 
it,  and  had  been  able  to  put  one  out  of  every  twenty  of 
our  population  into  the  fighting  line  as  readily  as 
Switzerland  is  able  to  put  one  out  of  every  ten  of  her 
population  into  the  fighting  line,  either  we  should  have 
had  no  occasion  to  enter  the  war,  or  it  would  have  been 
victoriously  won  long  ago.  Rather  than  to  misplace 
our  dependence  in  the  protection  of  a  feeble  military 
establishment,  it  were  better  to  have  none,  but  to  rely 
wholly  on  that  kindly  providence  which  is  supposed  to 
preserve  the  fool  from  the  logical  consequences  of 
his  folly. 

The  first  requisite  of  military  preparedness  is  an 
adequate  navy.  While  it  is  true  that  the  absence  of 
an  adequate  English  army  probably  precipitated  the 
war,  and  undoubtedly  prolonged  it,  it  is  no  less  true 
that  only  the  strength  and  readiness  of  the  British  navy 
prevented  the  war  from  resulting  in  the  subjugation  of 
Europe.  For  three  years  it  was  literally  true  that  the 
battleships  of  Great  Britain  stood  between  the  demo- 
cratic world,  ourselves  included,  and  supreme  disaster. 
That  risk  we  must  never  incur  again.  With  rich  and 
vulnerable  coasts  fronting  on  the  two  oceans,  easily 
open  to  attack  or  invasion,  it  is  little  short  of  criminal 
folly  to  leave  them  without  the  most  adequate  pro- 
tection. The  navy  as  the  first  line  of  defense  should  be 


AFTER  THE  WAR  179 

maintained  at  such  a  degree  of  power  and  efficiency  as 
to  furnish  a  fleet  for  the  Atlantic  and  a  fleet  for  the 
Pacific,  each  sufficiently  powerful  to  afford  protection 
against  attack  without  the  aid  of  the  other;  for  we 
must  not  be  unprepared  for  the  contingency  of  a  com- 
bination of  European  and  Asiatic  powers  against  us. 
The  bitter  lesson  of  this  war  is  that  military  strength 
cannot  be  improvised,  and  we  should  not  again  permit 
ourselves  to  be  lulled  into  a  false  sense  of  security  by 
the  fatuous  suggestion  of  a  million  citizens  springing  to 
arms  over  night — a  suggestion  which  might  have  been 
substantial  if  only  the  citizens  had  been  taught  to 
spring,  and  provision  had  first  been  made  to  have  the 
arms  within  reasonable  springing  distance. 

We  must  strengthen  the  coast  fortifications  we  al- 
ready have  at  critical  points  and  construct  others 
wherever  needed,  and  maintain  them  all  at  the  highest 
level  of  efficiency  with  guns  which  in  range  and  power 
keep  pace  with  the  latest  and  best  expressions  of  mili- 
tary science.  The  personnel  of  the  coast  artillery  until 
recently  has  been  shamefully  and  dangerously  below 
the  most  meager  limit  of  necessity,  a  situation  whose 
existence  we  cannot  afford  to  permit  again;  for  it  is 
useless  to  have  guns,  however  perfect,  without  expert 
gunners  to  use  them.  The  coast  artilleryman  has  a 
greater  degree  of  technical  training  than  any  other  man 
in  the  military  service.  It  has  been  of  such  character 
that  in  case  of  need  he  may  serve  with  the  field  artillery, 
the  machine  guns,  or  the  infantry,  or  in  any  service 
where  a  working  knowledge  of  electric  appliances  may 
be  needed.  There  is  no  danger  of  having  an  over- 
supply  of  these  highly  efficient  men. 


180    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

The  third  line  of  defense  is  the  army.  It  is  impossible 
to  deal  with  the  subject  as  fully  as  its  importance  war- 
rants and  what  I  have  to  say  must  necessarily  be  com- 
pressed into  a  few  sentences.  A  large  professional  army 
is  not  desirable  for  several  reasons,  among  them  that  it 
takes  too  many  from  the  productive  employments  and 
is  a  heavy  burden  of  expense.  It  will  be  sufficient  for 
us  to  provide  for,  and  maintain  on  a  peace  footing,  a 
regular  army  of  from  300,000  to  500,000  men,  fully 
equipped  with  the  latest  and  best  military  appliances, 
and  trained  and  kept  trained  to  the  highest  point  of 
modern  efficiency.  These  men  should  be  maintained  at 
fewer  places  and  in  larger  numbers  than  has  hitherto 
been  the  case,  and  to  this  end  we  should  abandon  most 
of  the  small  forts  scattered  about  the  country,  and  re- 
tain only  such  of  them  as  occupy  positions  of  strategical 
value  for  concentration  and  like  purposes.  These  forts, 
each  capable  of  accommodating  a  few  hundred  troops, 
were  in  the  main  established  at  a  time  when  it  was  neces- 
sary to  have  small  bodies  of  soldiers  at  widely  separated 
points,  so  as  to  be  readily  available  for  the  quick  sup- 
pression of  Indian  uprisings.  That  situation  no  longer 
exists,  and  hereafter  the  use  of  military  forces  is  likely 
to  be  in  large  bodies,  which  in  order  to  operate  effec- 
tively in  time  of  war  must  be  accustomed  to  acting 
together  in  time  of  peace. 

Such  an  army,  however,  is  only  a  vanguard  and  will 
prove  altogether  insufficient  for  our  needs  in  any  defen- 
sive warfare  we  are  likely  to  be  called  upon  to  wage — 
and  it  is  greatly  to  be  hoped  that  occasion  for  any  other 
kind  will  not  arise — for  it  is  clear  that  only  a  very 
strong  military  power,  or  a  combination  of  powers,  will 


AFTER  THE  WAR  181 

ever  assume  the  risk  of  attacking  us.  But  a  rich  nation 
like  ourselves,  ambitious  for  commercial  expansion,  will 
inevitably  run  counter  to  the  ambitions  of  other  people 
and  invite  animosities  which  may  easily  develop  into 
acts  of  aggression  unless  it  be  known  that  we  are  pre- 
pared to  overcome  force  with  greater  force.  To  that 
end  we  should  adopt  and  hereafter  maintain  a  thorough- 
going system  of  universal  compulsory  military  training. 
We  should  begin  with  our  boys  when  they  reach  the 
age  of  fourteen  years  by  imposing  as  part  of  their  regu- 
lar school  work  such  physical  training  as  will  develop 
their  strength — together  with  a  ready  ability  to  use  it 
—their  courage,  self-reliance,  and  power  of  initiative. 
An  admirable  foundation  upon  which  to  build  this  sys- 
tem is  that  afforded  by  the  principles  of  the  boy  scout 
movement.  When  these  boys  reach  the  age  of  seven- 
teen years  their  military  training  should  begin  and  con- 
tinue intensively  for  a  period  of  three  years.  Either  the 
Swiss  or  the  Australian  system  may  be  profitably 
adopted  and  under  either  system  not  more  than  an 
average  of  two  months  each  year  need  be  taken  for 
this  purpose.  This  will  not  interfere  with  the  education 
of  the  young  men  nor  their  usefulness  in  the  ordinary 
pursuits  of  life.  The  result  will  be  that  in  a  few  years 
we  shall  have  a  potential  military  force  of  many  mil- 
lions, who  can  be  mobilized  and  made  ready  for  active 
service  in  a  few  weeks.  This  training  should  be  under 
the  general  direction  and  exclusive  control  of  the 
national  government.  The  state  militia  has  never  been 
a  really  dependable  national  military  asset,  and  we 
should  not  carry  its  disturbing  principles  into  the  field 
of  universal  military  training. 


1 82    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

It  is  a  mistake  to  suppose  that  such  a  system  would 
render  war  more  likely.  As  the  Swiss  experience  has 
demonstrated,  it  will,  on  the  contrary,  constitute  a 
very  powerful  influence  for  peace.  Surely  we  have  by 
this  time  discovered  that  it  is  weakness,  and  not 
strength,  which  invites  attack.  There  is  no  more 
danger  that  a  body  of  men  pursuing  the  vocations  of 
peace  will  be  likely  to  favor  an  offensive  war  because 
they  know  how  to  fight  than  there  is  that  a  single  indi- 
vidual will  be  quarrelsome  because  he  is  strong,  coura- 
geous, and  self-reliant. 

With  such  a  navy,  with  such  protected  coasts,  and 
with  such  an  army,  backed  by  such  a  body  of  trained 
citizens,  we  could  not  only  put  behind  us  all  fear  of  in- 
vasion or  successful  attack  from  any  power,  or  any 
possible  combination  of  powers  but,  at  the  same  time, 
have  a  more  virile  and  capable  population  for  the 
development  of  all  the  arts  of  peace.  To  those  whose 
hearts  sink  at  the  thought  of  the  expense  of  such  a 
program  it  is  sufficient  to  say  that  the  prevention  of  a 
single  great  war  in  fifty  years  would  alone  justify  it. 
We  have  spent  more  money  in  the  past  eighteen  months 
to  reach  a  degree  of  preparedness  sufficient  to  enable  us 
to  render  effective  assistance  to  our  powerful  allies  than 
it  would  have  cost  us  during  the  entire  period  since  the 
Civil  War  to  maintain  a  military  establishment  of  the 
character  outlined,  and  of  a  progressive  strength  rela- 
tively proportioned  to  our  changing  necessities. 

Universal  military  training  is  essentially  democratic 
—primitively  democratic;  for  in  the  days  of  our  fore- 
fathers every  man  was  a  fighting  man  trained  in  the 
school  of  every-day  experience.  His  rifle  and  powder- 


AFTER  THE  WAR  183 

horn  hung  upon  the  wall  ready  for  instant  use.  Our 
young  men  no  longer  obtain  skill  in  the  use  of  weapons 
by  daily  contact  with  the  hard  problems  of  frontier  life ; 
and  there  is,  therefore,  need  of  stimulated  training  un- 
less we  are  content  to  become  a  race  of  weaklings  and 
ultimately  suffer  the  penalty  of  conquest  and  perhaps 
domination  at  the  hands  of  some  hardier  race.  If  it 
be  wise  for  a  democracy  to  acquire  sufficient  intelli- 
gence to  vote  for  the  establishment  and  maintenance 
of  free  institutions,  surely  it  is  no  less  wise  for  them  to 
learn  how  to  defend  and  preserve  these  institutions 
from  destruction.  Even  those  who  are  opposed  to 
military  preparedness  do  not  question  the  right  of  the 
people  to  fight  in  their  own  defense,  only  they  seem  to 
think  that  there  is  some  mysterious  virtue  in  not  being 
able  to  fight  well. 

Let  us  rid  ourselves  of  the  superstition  that  mili- 
tarism is  a  mere  matter  of  armies  and  navies.  Every 
man  in  Switzerland  is  a  soldier;  France  not  only  com- 
pels universal  training,  but  universal  service;  Great 
Britain  has  a  navy  far  exceeding  in  power  any  other  in 
the  world;  but  militarism  curses  none  of  these  coun- 
tries. Militarism  is  a  spirit — that  false  and  evil  spirit 
of  force  which  teaches  that  right  and  justice  may  ask 
no  questions  of  might.  A  great  army  may  be  the  instru- 
ment of  militarism  as  a  facile  tongue  may  be  the 
instrument  for  the  utterance  of  a  lie,  but  the  lie  itself 
is  of  the  spirit  and  not  of  the  tongue.  It  is  as  false  to 
say  that  armies  and  navies  necessarily  produce  mili- 
tarism as  it  would  be  to  say  that  a  tongue  necessarily 
makes  its  possessor  a  liar. 


1 84    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

The  subject  of  preparedness  cannot  be  dismissed 
without  some  reference — necessarily  brief — to  the  sug- 
gested plan  for  a  League  of  Nations  to  enforce  peace. 

Peace  is  so  desirable  and  war  so  dreadful  that  any 
proposal  which  promises  a  peaceful  substitute  for  war- 
fare in  the  settlement  of  international  disputes  immedi- 
ately enlists  our  sympathies  and  makes  a  well-nigh 
irresistible  appeal  for  our  support.  For  this  very  reason 
we  must  be  on  our  guard,  lest  by  lending  a  too- willing 
ear  to  the  plausible  but  impracticable  we  permit  our 
judgment  to  be  betrayed  by  our  desire. 

The  world  has  grown  to  a  condition  of  vast  complex- 
ity with  a  multitude  of  diverse  and  conflicting  interests. 
Some  nations  have  all  the  territory  they  wish  and  are 
anxious  only  to  be  left  undisturbed.  Such  is  the  case  of 
Great  Britain;  such  is  our  own  case.  Other  nations 
living  in  cramped  quarters  are  land  hungry,  and  long 
for  expansion.  Such  was  the  case  of  Germany;  such  is 
the  case  of  Japan.  The  pressure  for  an  outlet  for  the 
surplus  populations  of  growing  countries  of  limited  area 
is  not  likely  to  become  less,  and  will  always  constitute 
a  possible  incitement  to  warlike  aggression.  There  is 
the  problem  of  the  uncivilized  and  the  partially  civil- 
ized races;  the  problem  of  the  small  and  the  sub- 
merged nationalities,  and  a  vast  number  of  other 
problems  which  have  vexed  humanity  from  the  begin- 
ning, and  are  not  likely  to  be  eliminated  in  the  near 
future.  It  is  greatly  to  be  desired  that  some  feasible 
method  should  be  devised  for  a  peaceful  determination 
of  international  disputes  arising  out  of  these  and  similar 
conditions  whenever  they  become  acute;  but  the 
method  must  be  practicable  as  well  as  righteous.  We 


AFTER  THE  WAR  185 

would  better  endure  the  ills  we  have  than  accept  any 
plan,  however  alluring,  whose  highly  probable  failure 
would  result  in  a  revival  of  the  old  conditions  in  perhaps 
an  intensified  and  more  stubborn  form.  It  is  pre- 
eminently a  time  and  situation  for  the  sort  of  action 
which  will  take  us  forward  securely,  even  if  slowly, 
rather  than  to  a  doubtful  ending  in  great  haste.  I 
think,  therefore,  we  shall,  in  the  long  run,  secure  better 
and  more  lasting  results  by  a  gradual  extension  of  the 
principles  and  plans  already  initiated  by  The  Hague 
Conferences  than  by  adopting  the  more  ambitious  and 
more  adventurous  plan  now  suggested  for  the  League 
of  Nations,  including  as  its  distinguishing  feature  the 
use  of  some  form  of  international  force.  Few  countries 
were  ready  for  such  a  plan  before  the  war,  and  there  is 
grave  danger  that  any  radical  provision  for  peace  en- 
forcement adopted  under  the  present  tense  and  excited 
condition  of  world  thought  will  be  found  unworkable 
after  we  shall  have  returned  to  a  normal  state  of  mind. 
We  are  told  that  as  the  use  of  force  is  necessary  and 
potent  to  maintain  peace  among  individuals  it  is  neces- 
sary and  will  be  potent  in  the  case  of  nations;  but  infer- 
ences drawn  from  analogies  are  sometimes  deceptive. 
Because  we  may  agree  that  the  conduct  of  an  individual 
and  the  conduct  of  a  nation  should  be  governed  by  the 
same  moral  standards,  it  does  not  follow  that  identical 
measures  of  enforcement  or  of  punishment  will  be 
equally  successful  or  applicable.  The  guilt  of  the  indi- 
vidual is  purely  personal;  but  in  the  case  of  national 
misbehavior  the  people  are  seldom  equally  culpable,  and 
often  a  large  proportion  of  them  are  not  culpable  at  all. 
To  use  military  force  against  a  nation  by  way  of  coer- 


1 86    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

cion  or  punishment  is,  therefore,  to  inflict  suffering  in- 
discriminately upon  the  guilty  and  the  innocent  alike, 
a  wrong  which  constitutes  one  of  the  principal  injus- 
tices of  war  and  ought  not  to  be  deliberately  perpetu- 
ated in  a  scheme  of  international  justice  designed  to 
put  an  end  to  war.  The  plan  really  involves  a  military 
combination  pledged  to  make  war  upon  any  member 
of  the  League  who  begins  hostilities  against  another 
member  without  first  submitting  the  dispute  to  arbi- 
tration. It  is  not  proposed  at  present,  as  I  understand, 
to  enforce  the  arbitral  decree  by  the  use  of  military 
force,  though  it  does  not  seem  illogical  to  conclude  that 
such  an  extension  of  the  proposal  must  inevitably  fol- 
low. It  is  this  feature  of  the  plan,  thought  by  some  to 
be  its  principal  strength,  which  I  am  persuaded  will 
prove  its  fatal  weakness. 

In  the  first  place,  it  is  not  always  easy  to  determine 
who  is  responsible  for  commencing  hostilities.  There  is 
in  modern  diplomacy  a  good  deal  of  skillful  and  dis- 
ingenuous maneuvering  on  the  part  of  each  of  the  an- 
tagonists to  put  the  other  in  the  attitude  of  beginning 
the  war,  and  this  practice  would  undoubtedly  be  accen- 
tuated under  conditions  where  the  aggressor  would  be 
placed  at  a  serious  disadvantage  by  incurring  the 
armed  opposition  of  the  League.  It  is  vain  to  imagine 
that  the  formation  of  the  League  would  put  an  end  to 
the  antagonisms  which  divide  some  nations,  and  the 
common  interests  which  unite  others.  Common  ideals, 
common  language,  common  interests,  a  thousand  un- 
foreseeable causes,  will  still  tend  to  bind  nations  to- 
gether, and  an  opposite  state  of  affairs  to  hold  them 
apart.  It  is  reasonable  to  suppose,  therefore,  that  in 


AFTER  THE  WAR  187 

determining  the  question  of  culpability  an  unbiased 
opinion  will  never  be  certain.  Sooner  or  later  a  case 
will  arise  where  an  attempt  to  use  the  international 
forces  against  one  party  or  the  other  will  meet  with 
internal  resistance  so  serious  that  either  the  attempt 
will  be  abandoned  or  something  resembling  civil  war 
among  the  members  of  the  League  will  supervene.  In 
the  former  event  the  experiment  would  fail  ingloriously, 
and  in  the  latter  event,  ingloriously  and  disastrously; 
and  because  of  the  magnitude  of  the  interests  involved 
the  failure  would  arrest  the  movement  in  the  direction 
of  world  cooperation  for  peace  for  many  years  to  come. 

The  factors  are  so  many  and  complex,  the  cross- 
currents of  international  interests  so  varied,  the  views 
of  the  advocates  of  the  plan  respecting  the  control, 
formation,  and  character  of  the  military  forces  to  be 
employed,  and  the  nature  of  the  administrative  ma- 
chinery to  be  adopted,  so  indefinite  as  to  surround  the 
entire  proposal  with  an  atmosphere  of  the  gravest 
doubt. 

How  is  the  power  of  the  League  to  be  distributed? 
How  is  its  administration  to  be  constituted?  How  are 
the  military  forces  to  be  made  up  and  under  what 
direction  are  they  to  be  operated?  If  we  bind  ourselves 
to  join  with  other  nations  in  raising  and  equipping 
military  forces  to  coerce  and  punish  rebellious  and  diso- 
bedient members  of  the  League  by  making  war  upon 
them  whenever  the  governing  agency  of  the  League 
shall  so  determine,  what  will  happen  in  the  not  impos- 
sible event  that  the  sympathies  of  our  people  are  with 
the  recalcitrant  member — as,  for  example,  in  a  contro- 
versy between  France  and  Germany,  with  France  in  the 


role  of  aggressor — and  Congress,  vested  with  the  power 
to  declare  war  and  appropriate  moneys,  should  refuse 
to  act? 

These  and  other  questions  admonish  us  against  rely- 
ing too  unreservedly  upon  any  experimental  plan  for 
ending  international  warfare ;  and  to  rely  upon  any  such 
plan  as  a  substitute  for  our  own  strength  and  readiness 
would,  in  my  judgment,  be  the  utmost  reach  of  folly. 
There  is  today  throughout  the  world  an  overwhelming 
sense  of  war  weariness;  but  that  will  pass  away  and 
newer  sensations  will  come  with  the  problems  of  an- 
other day,  and  it  is  for  that  later  day  and  not  for  this, 
that  we  must  take  heed. 

More  satisfactory  results,  it  seems  to  me,  are  to  be 
obtained  by  following  and  extending  the  principles  al- 
ready enunciated  by  The  Hague  Conferences.  Great 
and  valuable  progress  has  already  been  made.  There 
has  been  a  constantly  growing  disposition  to  submit 
international  differences  to  arbitration.  Certain  weak- 
nesses, however,  should  be  eliminated  and  extension 
made  in  two  directions:  (i)  by  broadening  the  scope  of 
the  jurisdiction,  and  (2)  by  substituting  for  the  present 
arbitral  tribunal  a  real  international  court  with  judicial 
power. 

I.  Provision  should  be  made  for  submitting  all  ques- 
tions of  a  justiciable  nature  by  reason  of  their  being 
susceptible  of  decision  by  the  application  of  the  prin- 
ciples of  law  or  equity.  In  other  words,  the  jurisdic- 
tional  test  furnished  by  the  unratified  treaties  of  the 
Taft  administration  should  be  adopted.  As  already 
pointed  out,  the  exception  of  cases  involving  questions 
of  honor  and  vital  interests  is  not  only  unnecessary  but 


AFTER  THE  WAR  189 

mischievous.  The  reasons  for  this  conclusion  have  cl- 
ready  been  stated  in  Chapter  VI  and  need  not  be 
repeated. 

The  constitution  and  practice  of  our  own  National 
Supreme  Court  furnish  striking  and  sufficient  proof  of 
the  entire  feasibility  of  the  suggested  test.  The  distinc- 
tion between  judicial  questions  which  the  Court  has 
power  to  determine,  and  political  questions  which  the 
Court  refuses  to  entertain,  has  been  clearly  established. 

2.  The  great  weakness  of  the  present  plan  is  that 
international  controversies  are  submitted  not  to  a  court 
bound  by  legal  rules,  but  to  a  board  of  arbitrators 
selected  by  the  opposing  parties  and  who,  therefore, 
enter  upon  the  trial  of  the  cause  not  as  so  many  judges 
but  as  so  many  advocates.  The  tendency  of  such  a 
proceeding  is,  therefore,  to  bring  about  a  judgment  for 
one  side  or  the  other,  not  according  to  strict  right,  but  a 
compromise  more  or  less  unfair  and  unsatisfactory  to 
both  sides.  In  the  place  of  this  tribunal  there  is  no 
reason  why  we  should  not,  as  our  government  has  here- 
tofore insisted,  provide  for  a  judicial  court  of  justice 
whose  members  shall  be  selected  for  their  learning, 
integrity,  and  ability,  and  whose  tenure  of  office  and 
compensation  shall  be  sufficient  to  induce  men  of  the 
requisite  ability  and  character  to  serve  to  the  exclusion 
of  all  other  occupation.  No  better  model  for  the  estab- 
lishment of  such  a  Court  can  be  found  than  that  fur- 
nished by  the  Supreme  Court  of  the  United  States, 
which  has  been  vested  with  jurisdiction  over  contro- 
versies between  different  states  of  the  Union.  The 
signatories  of  the  convention  should  agree  to  submit  all 
controversies  falling  within  the  description  of  the  juris- 


IQO    CONSTITUTIONAL  POWER  AND  WORLD  AFFAIRS 

dictional  clause,  to  this  tribunal  for  decision,  and  should 
bind  themselves  explicitly  to  abide  by  its  determination. 
It  will  be  neither  advisable  nor  necessary  to  employ 
military  forces  to  put  the  decrees  of  such  a  Court  into 
effect.  The  force  of  public  opinion  throughout  the 
world  will  be  sufficient  to  insure  compliance,  as  it  has 
been  sufficient  thus  far  to  insure  compliance  with  the 
numerous  decrees  rendered  under  the  process  of  arbi- 
tration. The  problem  is  not  so  much  to  secure  obedi- 
ence to  the  decree  of  an  international  tribunal,  as  it  is 
to  secure  the  consent  of  the  various  nations  to  the 
establishment  of  the  tribunal  and  common  agreement 
respecting  its  constitution  and  powers.  In  spite  of  the  cyni- 
cal indifference  of  the  late  German  government  toward 
the  "opinions  of  mankind,"  and,  indeed,  largely  because 
of  that  attitude,  the  nations,  and  particularly  the  great 
nations,  in  the  future,  will  be  more  than  ever  amenable 
to  their  compelling  force. 

Eighty-six  years  ago  Andrew  Jackson  could,  with  im- 
punity, defy  a  decision  of  the  Supreme  Court  of  the 
United  States,  constraining  the  action  of  a  "sovereign" 
state;  but  any  President  who  should  attempt  to  do 
that  today  would  be  overwhelmed  by  the  storm  of 
popular  disapproval  which  would  ensue.  Public  con- 
fidence in  and  reverence  for  that  great  Court  have  be- 
come so  firmly  established  that  no  state  against  whom 
an  adverse  decision  were  rendered  would  dream  of 
opposing  or  withholding  compliance  with  it.  That  an 
army  should  be  utilized  or  should  be  necessary  to 
enforce  such  a  decision  is  simply  unthinkable. 

Popular  government  means  self-restraint,  and  that 
leaven,  since  Andrew  Jackson's  day,  has  been  at  work 


AFTER  THE  WAR  191 

silently,  but  with  great  power,  until  the  free  people  of 
the  earth  have  come  to  an  intelligent  comprehension 
of  the  truth  that  liberty  can  never  survive  the  destruc- 
tion of  order;  and  order  perishes  whenever  the  judg- 
ments of  the  established  courts  of  justice  do  not  com- 
mand ready  and  respectful  obedience.  It  is,  therefore, 
reasonable  to  expect  there  would  be,  or  would  speedily 
develop,  on  the  part  of  the  civilized  world,  a  sentiment 
of  respect  for  and  confidence  in  the  decisions  of  an 
International  Court  of  Justice,  so  powerful  as  to 
threaten  any  non-complying  nation  with  international 
outlawry  and  render  compliance  a  simple  matter  of 
course.  At  any  rate,  if  the  world  has  not  advanced  to 
such  a  period  of  respect  for  law  and  order  among  na- 
tions as  to  insure  this  result,  it  has  not  reached  the 
point  where  it  may  safely  rely  upon  its  own  enduring 
adherence  to  any  other  plan  of  peace  enforcement. 


INDEX 


Act,  Alien,  56,  57;  Chinese  Exclu- 
sion and  Expulsion,  57,  151; 
Philippine  Organic,  83,  84; 
Legal  Tender,  92,  93;  Espion- 
age, IOI,  102,  103,  104,  112; 
Conscription,  constitutionality 
of,  104,  105,  of  Civil  War,  106, 
107,  1 08;  Shipping  Board,  112; 
Food  Control,  113;  Tariff, 
119 

Act  of  Congress,  When  may  be 
repealed  by  treaty,  139,  151; 
When  may  repeal  a  treaty,  139; 
154;  When  void,  161;  supreme 
on  treaty?  162 

Adams,  John  Quincy,  on  war  pow- 
ers, 97 

Agriculture,  Secretary  of,  upon 
treaty  for  protection  of  migra- 
tory birds,  154 

Alien  Act,  56,  57 

Alien  and  Sedition  Laws,  56,  57, 
58 

Aliens,  Justice  Gray  on  admission 
of,  151;  152;  and  foreign  com- 
merce, 152 

Amendment,  ninth,  12;  tenth, 
I2»  33.  34.  156,  162;  Spooner,  82, 
83,  84;  thirteenth,  105;  four- 
teenth, 109 

America,  3;  an  armed  camp,  5; 
and  the  world  in  closer  relations, 
27 

American  Republics,  22 

American  Colonies,  Sovereignty 
of,  117 


Arbitration,  General,  treaties  of 
1905,  125;  Court  of,  129;  Arti- 
cles I  and  II,  130;  Permanent 
Court  of,  131 

Army,  of  Great  Britain,  178;  the 
third  line  of  defense,  180 

Articles,  of  the  Constitution,  I 
and  II,  121 ;  VI,  137,  157,  158; 
I  and  II  of  general  arbitration 
treaties,  129;  of  Confederation, 

39,  "7 
Austria,  3 

Belgium,  2,  4,  5,  7;  invaded,  6 

Bill  of  Rights,  10 

Boundaries,  Alterations  of,  147, 
148 

Bradley,  Justice,  56,  69 

Breckenridge,  66 

Brewer,  Justice,  57,  62 

Britain,  Great,  5,  14,  23,  37,  154, 
158,  177,  178,  183,  184 

British  Constitution,  14 

Butler,  Charles  Henry,  on  Treaty- 
Making  Powers,  119;  150,  161 

Calhoun,  Mr.,  "Discourse  on  the 
Constitution  and  Government 
of  the  United  States,"  145,  146, 

147 
California,  Exclusion  of  Japanese 

from,  163 

Campbell,  Judge,  58 
Causes,  Underlying,  of  war,  2 
Central  Powers,  5,  173 
Cession,  Power  of,  149,  150 


194 


INDEX 


Chase,  Chief  Justice,  in  Milligan 

Case,  85;  in  Ware  vs.  Hylton, 

160 

Chief  Executive,  83,  86,  123;  char- 
acterized by  Roger  Sherman, 

ill 
Chinese  Exclusion  and  Expulsion 

Acts,  57;    Justice  Field  on,  151 
Chisholm  vs.  Georgia,  Mr.  Justice 

Wilson  on,  163 
Civil    rights,    of    inhabitants    of 

enemy  territory,  80;   in  time  of 

war,  99,  100 
Civil  War,  the,   16;   condition  of 

national  finances  and  credit,  93; 

Conscription  Act  of,   106,   107, 

1 08 
Clark,  Major  J.  Reuben,  Jr.,  on 

"Emergency    Legislation,"    in, 

112,  113 

Coast  fortifications,  artillery,  179 

Commander-in-Chief,  73,  74,  75, 
76;  Power  of,  supreme,  77;  78, 
79,  80,  81,  83,  84,  86,  91;  Au- 
thority of  Congress  to  promote 
powers  of,  109,  no,  in 

Commerce,  Regulation  of,  49,  50; 
foreign  and  alien,  151,  152;  Field 
on  treaties  regulating,  152 

Commission,  Joint  High,  133,  134, 
135,  136 

Committee  of  Detail  of  the  Con- 
vention, 125 

Committee  on  Foreign  Relations, 
124,  132 

Compacts,  International,  not  nec- 
essarily treaties,  119,  120 

Confederation,  38;  Articles  of,  39, 
117;  Congress  of,  158,  159, 
163 

Confiscation,    Power  of,    112 


Congress,     The    Continental,    37, 

1 1 6,  117;  of  Confederation,  38, 

117,  158,  159;    50-56;    Plenary 
powers  of,  51,  52;  59-63;  Au- 
thority of,  65,  66;  68,  69;  power 
to  declare  war,  etc.,  71-76;  war 
powers  in  peace,  77;  78;  82-86; 
91 ;     Division    of    war    powers 
between,    and    Commander-in- 
Chief,   71-91;   92,   93,   99-101; 
"Espionage    Act,"    101 ;     Con- 
scription  Act,    104-109;     no- 
115;    120-124;    138-140;  when 
Act    of,    may    be    repealed  by 
treaty,    139,    151;     148;     150- 
155;  Act  of,  when  void,    161; 
Act  of,  or  treaty  supreme?  162 

Conscription,  104-106;  Act,  106; 
Supreme  Court  on,  106,  107, 
108,  of  Civil  War,  106-108 

Constitution,  The  American,  1-23; 
confers  power  to  declare  war, 
contemplates  offensive  as  well 
as  defensive  warfare,  8;  not 
undemocratic,  10;  The  soul  of, 
10,  1 1 ;  Ninth  and  tenth  amend- 
ments of,  12-  tenth,  33,  34,  156, 
162;  thirteenth,  105;  four- 
teenth, 109;  Webster  on,  n; 
changes  in  views  of  public  men, 
19,  20,  27;  "general  welfare 
clause,"  28;  nature  and  extent 
of  powers,  29,  30,  31;  Framers 
of,  limit  powers  of  general  gov- 
ernment, 32;  33-46;  Changes  of, 
48;  indefinitely  flexible,  49; 
express  and  implied  powers,  50, 
52;  commerce  clause,  50;  54, 
56-58;  property  clause,  59- 
64;  6 1 -68;  external  powers, 
extent  and  limitation,  internal 


INDEX 


195 


powers,  48-91;  written,  50; 
no  extraterritorial  effect,  57, 
144;  Judge  Campbell  on,  58; 
70,  71;  confers  no  powers  on 
President  as  such,  73-77;  80- 
84;  89,  90;  basis  of  war  powers, 
92;  Destruction  of,  threatened 
by  Civil  War,  93;  94, 95;  Fram- 
ers of,  32,  95,  159;  152,  157; 
A  fractured,  better  than  a  Ger- 
man victory,  96;  97,  99,  IO2, 
105-111;  117-119;  121 ;  Treaty- 
making  powers  confirmed  rather 
than  created  by,  118;  122;  wis- 
dom of  framers,  124;  127,  130, 
132;  Article  VI,  137,  157,  158; 
138;  limits  power  of  making 
treaties,  141 ;  not  to  be  changed 
by  treaty,  143;  Mr.  Calhoun 
on,  145;  Specific  provisions  of, 
146;  147,  154;  prohibits  to 
separate  states  treaty-making 
powers,  156;  Purpose  of  "to 
form  a  more  perfect  union," 
165;  171,  172 

Constitution,  British,  II,  13,  14 

Constitution-Making  Powers,  146, 
147,  150-154 

Constitutions,  State,  contrary  to 
Treaty  of  1783,  160,  161 

Contract,  international  and  pri- 
vate, limited  by  public  policy, 
141 

Convention,  Framers,  32,  40,  41, 
in;  The,  124;  Committee  of 
Detail,  125;  Virginia,  Mr.  Mad- 
ison on,  1 60;  Pennsylvania 
Ratifying,  160 

Conventions,  120 

Corwin,  Professor,  on  "National 
Supremacy,"  161 


Davis,  Justice,  86,  87 
Declaration  of   Independence,   2, 

9,  10,  37,  38,  116,  117 
Democracy  and  the  Constitution, 

1-23;   righteous,  3 
Democrats,      Breckenridge      and 

Douglas,  66 
"Discourse  on  the  Constitution  and 

Government  of  theUnitedStates, " 

by  Mr.  Calhoun,  145,  146,  147 
Disloyal  words  and  acts,  102-104 
Disloyalty,  88 

Disorderly  houses,    100,    101 
Dominion  of  Canada,  Treaty  with, 

for     protection     of     migratory 

birds,  154 
Douglas,  66 
Draft,  Selective,  cases,  105,  106, 

present  law,  109;  laws  sustained 

by  the  Supreme  Court,  109 

"Emergency  Legislation,"  by  Ma- 
jor J.  Reuben  Clark,  Jr.,  1 1 1-113 
Emergency     powers,     in,     112; 
powers  of  confiscation,  112;  of 
requisition,  113 
England,    home    of    Anglo-Saxon 

liberty,  3,  4,  n 

"Espionage  Act,"  101-104;  II2 
Europe,  Our  participation  in  fu- 
ture   policies    of,    effect    upon 
ourselves,  politics  and  policies 
of,    18;     The    balance   of,    our 
concern,  21,  22;  Monroe  Doc- 
trine has  never  received  the  ap- 
proval   of,    23;    Geography  of, 
readjusted  at  peace-table,   167 
Everett,  Edward,  149 
Executive  proclamation,  53 
Eortra-constitutional,    not    neces- 
sarily ttrt-constitutional,  55 


196 


INDEX 


Field,  Justice,  on  exclusion,  57; 
on  limitations  of  treaty-making, 
144;  on  Chinese  Exclusion  case, 
151;  on  treaties  regulating  for- 
eign commerce,  152 

Food  Control  Act,  113 

Foreign  relations,  Senate  com- 
mittee on,  124,  132;  Supremacy 
of  national  power  in,  163 

Fourteenth  Amendment,  109 

Framers  of  Constitution,  limit 
power  of  general  government, 
32;  Intention  of ,  95,  159;  Belief 
of,  in  sufficient  safeguard,  152; 

157 
Framers  Convention,  32, 40, 41,111 

France,  3,  5,  7;  Treaty  of  Amity 
and  Commerce,  117;  General 
arbitration  treaties  with,  of 
1905,  129;  130-136;  Universal 
training  in,  183 

Freedom  of  speech  and  press  in 
time  of  war,  98 

Fuller,  Chief  Justice,  The  Lottery 
Case,  31 

Gallatin,  Albert,  52 

German,  Kaiser,  Intolerance  of, 
2;  armies,  3,  6;  blunders,  4; 
Empire,  7;  Government,  "in- 
different to  opinions  of  man- 
kind," 190 

Germany,  3;  her  higher  strategy, 
4;  her  military  machine,  4; 
military  5,  6,  7,  8,  21,  184 

Government,  General  powers  of, 
completely  adequate,  95;  cre- 
ated for  problems  of  war  as 
well  as  of  peace,  97;  Powers  of, 
in  time  of  war,  98,  99;  when 
may  call  out  militia,  165 


Gray,  Justice,  54;  on  admission 
of  aliens,  151 

Great  Britain,  5;  Constitution  of, 
ii,  13,  14;  23,  37;  Peace  treaty 
with,  38;  Treaties  with,  under 
Taft,  130-136;  Treaty  with,  for 
protection  of  migratory  birds, 
154;  treaty  of  1783,  158;  Men- 
ace of  starvation  to,  177;  in 
1914,  178;  her  army,  her  navy, 
178,  183;  has  all  the  territory 
she  can  wish,  184 

Guadaloupe  Hidalgo,  148 

Guano  Islands,  territory  acquired 
by  discovery,  53,  55 

Habeas  corpus,  power  to  suspend, 
89»  90,  91;  Lincoln  on,  91,  104; 
Chief  Justice  Taney  on,  91 

Hague,  Court  of  Arbitration,  129; 
Conferences,  185,  1 88,  189 

Hale,  Sir  Matthew,  80 

Hamilton,  Alexander,  Rule  for- 
mulated by,  51,  52;  149 

Hodges,  A.  G.,  96 

House  of  Commons,  n 

House  of  Representatives,  124, 
125,  151 

International  Court  of  Justice, 
191 

International  law,  applied  to 
treaty-making  powers,  141;  trea- 
ties limited  by,  155,  156 

Internationalism,  176,  177;  and 
patriotism,  176 

Italy,  3,  5 

Jay,  treaty,  125 
Jackson,  Andrew,  190 
Japan,  184 


INDEX 


197 


Japanese,  exclusion  from  public 
schools,  162,  163;  Treaty-Mak- 
ing Powers  of  Nation  competent 
to  accord  privileges  to,  163 

Jefferson,  Thomas,  52,  149 

Joint  High  Commission  of  Inquiry, 
131-136 

Jones,  Henry,  case,  53,  56 

Kaiser,  The  German,  2,  3 

Kearney,  General,  79 

Kent,  Chancellor,  149 

King,  Rufus,  insisted  states  were 

not  sovereign,  40,  41 
Knox,  Senator,  139 

Law  of  Nations,  141,  142 

League  of  Nations,  184-187 

Legal  Tender  Cases,  56;  second 
case,  92 

Legal  Tender  Acts,  held  first  by 
Court  as  unconstitutional,  opin- 
ion reversed,  92;  conditions  of 
country  when  passed,  93;  Jus- 
tice Strong  on,  93 

"Limitations  on  the  Treaty-Mak- 
ing Power,"  by  Henry  St.  George 
Tucker,  161 

Lincoln,  President,  on  habeas 
corpus,  91,  104;  letter  to  A.  G. 
Hodges,  96 

Lottery  Case,  Fuller  on,  31 

Louisiana  purchase,  52 

Luxembourg,  6,  Neutrality  of,  6,  7 

Madison,  Mr.,  in  Virginia  Conven- 
tion, 160 

Magna  Charta,  10 

Marshall,  Chief  Justice,  52;  on 
treaty  of  1783,  162;  treaties  the 
supreme  law,  162. 


Martial  law,   77,   79,   80,   81,   84; 

not  law  at  all,  85;  86-89 
Mexico,  7,  82,  148,  149. 
Militarism,  not  a  matter  of  armies 

and  navies,  183;  not  a  curse,  a 

spirit,  183. 

Military  commander,  82,  85,  86 
Military   government,    78-86 
Military  jurisdiction,  Three  kinds 

of,  85,  86,  87 

Military  operations,  76,  86 
Military     training,     System     of, 

Swiss  or  Australian,   181;  uni- 
versal,   181,    182;     in   France, 

183 
Militia,    State,     108,     109,     no; 

When    government    may    call 

out,  165 

Milligan  case,  79,  85 
Monroe  Doctrine,  The,  22,  23,  134 
Munn   vs.    Illinois,   Justice   Wait 

upon,  43 

Nation,  Concerning  powers  of,  20; 
a  political  entity,  25;  source  of 
powers,  26-44;  an  organism 
having  inherent  power  to  grow, 
48 ;  Self-preservation  the  highest 
duty  of,  97,  98;  Sovereign  will 
of,  embodied  in  the  Consti- 
tution, 147;  Treaty-Making 
Powers  held  exclusively  by, 
156;  complete  sovereign,  164, 
165 

National  Government,  Powers  of, 
24-47 

National  Guard,  105,  108 

"National  Supremacy,"  by  Pro- 
fessor Cor  win,  161 

Nations,  Law  of,  141,  142;  League 
of,  184-187 


198 


INDEX 


Navy,  of  Great  Britain,  178,  183; 
An  adequate,  is  first  requisition 
of  preparedness  and  first  line  of 
defense,  178,  179;  how  should 
be  maintained,  179,  182 

Neutrality,  of  Luxembourg,  6,  7; 
of  Belgium,  "a  scrap  of  paper," 
6 

New  Mexico,  when  occupied  by 
our  armies,  79 

Non-resistance,  Policy  of,  8,  9 

Oregon,  territory  acquired  by  dis- 
covery and  appropriation,  53, 
55 

Paris,  3;  Treaty  of,  65,  82 

Parliament,  English,  The  powers 
of  Congress  as  ample  as,  66; 
does  not  possess  power  to  de- 
clare war,  72 

Patriotism,  older  than  our  institu- 
tions, 176 

Peace,  treaty  with  Great  Britain, 
38;  Military  government  after, 
81;  Problems,  conditions,  and 
powers  of,  97;  Rights  of  98,  99; 
Perpetual,  a  delusion,  173,  174, 

175,  184 

Peace  Council,  23 
Peace-table,  Geography  of  Europe 

readjusted  at,  167 
Peace-treaty,    Our    responsibility 

not  ended  with  signing,  167 
Penhallow  vs.  Doane,  37 
Permanent  Court  of  Arbitration, 

129,  131 

Petition  of  Right,  10 
Philippine,    Commission,    83,    84; 

Organic  Act,  83,  84 
Philippines,  82,  83 


Police  power  of  State,  Treaty- 
making  power  not  subject  to, 

155;  157 

Porto  Rico,  82 

Postal  treaties  and  conventions,  120 

Postmaster-General,  Power  of  to 
conclude  postal-treaties,  120, 126 

Powers,  plenary,  of  Congress, 
51,  52,  126;  power  to  amend, 
126,  127;  emergency,  in,  112, 
113;  police,  157 

Preparedness,  not  confined  to 
military  preparation  alone,  175; 
perilous  to  neglect,  177;  Neces- 
sity of  spiritual,  material,  mili- 
tary, 177;  military,  178;  first 
requisite  an  adequate  navy,  178; 
Means  of,  179;  League  of  Na- 
tions, 184 

President,  the,  War  powers  of, 
75i  76,  77;  Activities  of,  in  time 
of  peace, '77;  power  to  suspend 
habeas  corpus,  91 ;  Office  of,  no, 
in;  Powers  of,  115;  powers 
authorized  by  statute,  120;  pow- 
er to  make  treaties,  121-130; 
with  Senate  has  exclusive  power 
to  make  treaties,  121,  124,  125 

Problems,  International,  resulting 
from  the  war,  166;  public  de- 
fense most  important,  172 

Property  Clause,  of  the  Constitu- 
tion, 59-64 

Protocol,  how  differs  from  modus 
vivendi,  120 

Prussia,  Neutrality  of  Luxem- 
bourg guaranteed  by,  6 

Public  defense,  most  important 
problem,  172;  Navy,  first  line  of, 
178, 179;  Army,  third  line  of,  180 

Public  policy,  141,  142 


INDEX 


199 


Regulation,  Powers  of,  114,  115 
Requisition,  112,  "complete,"  "in- 
complete," 113,  114 
Revolution,  The  American,  10,  16 
Root,  Elihu,  Secretary  of  War,  on 
distribution  of  power,  156,  157 

Sarajevo,  assassinations,   169 

"Scrap  of  paper,"  6,  140 

Secretary  of  State,  the  direct 
representative  of  President  in 
foreign  affairs,  124;  126 

Secretary  of  the  Interior,  126 

Secretary  of  Agriculture,  on  treaty 
for  protection  of  migratory 
birds,  154 

Sedition,  102,  104 

Selective  draft  cases,  Justice 
White  on,  105,  106 

Senate,  the,  119,  120;  Treaty  re- 
quires participation  of,  119; 
with  President,  has  exclusive 
power  to  make  treaties,  12 1; 
power  to  make  treaties,  121- 
125;  Consent  of,  123;  on  For- 
eign Relations,  124;  power 
when  plenary,  126;  power  to 
amend,  126,  127;  Necessity  of 
having  action  of,  on  every 
treaty,  128;  May  consent  of, 
be  dispensed  with?  128,  129; 
129-134;  has  not  power  to  de- 
prive State  of  equal  suffrage, 
148;  151-152 

Sherman,  Roger,  in 

Shipping  Board  Act,  112 

Sovereignty,  inherent  attribute, 
77;  "squatter,"  67;  State,  164 

Spanish  possessions,  82 

Speer,  Judge,  109 

Specie  payment,  suspended,  93 


Spooner  amendment,  82,  83,  84 

"Squatter  sovereignty,"  67 

State,  essential  attributes  of,  40; 
Department,  120 

State  power,  supremacy  of  trea- 
ties, 155 

State  sovereignty,  and  treaty 
rights  of  foreigners,  164 

Statute,  when  void,  162 

Statutes,  in  time  of  peace,  78 

Story,  Justice,  his  work  on  the 
Constitution,  52,  53;  149 

Strong,  Justice,  56;  on  Legal 
Tender  Acts,  93 

Suffrage,  equal,  a  State  not  to  be 
deprived  of  by  Senate,  148 

Supreme  Court,  of  United  States, 
3J»  37»  3**;  on  Penhallow  vs. 
Doane,  37;  Ex  Parte  Virginia, 
43:  50-59;  65,  68;  79,  84,  87, 
91;  on  Second  Legal  Tender 
case,  92;  partial  reconstruction 
of  tribunal,  92;  105;  of  Pennsyl- 
vania, 106-108;  on  Conscription 
Act  of  Civil  War,  106,  107,  108; 
109,  119,  120,  127,  138;  decides 
treaty  may  repeal  prior  Act  of 
Congress,  151;  upon  supremacy 
of  treaty  over  state  law,  160; 
162;  Constitution  and  practice 
of,  189,  190 

Switzerland,  able  to  put  one  of 
every  ten  citizens  in  fighting 
line,  178;  Every  man  of,  a 
soldier,  183 

Sultan  of  Turkey,  3 

Taft,  President,  treaties  with 
Great  Britain  and  France,  130; 
unratified  treaties  of  his  admin- 
istration, 1 88 


2OO 


INDEX 


Taney,  Chief  Justice,  on  habeas 
corpus,  91 

Tariff  Act,  119 

Tenth  Amendment,  12,  33,  34, 
156,  162 

Territories,  whether  Constitution 
extends  to,  66,  67;  68,  69 

Territory,  how  acquired  for  United 
States:  by  treaty,  by  conquest, 
by  original  discovery,  by  execu- 
tive proclamation,  53,  54,  58; 
Oregon,  Guano  Islands,  53, 
55;  "property  clause,"  59-64; 
rule  of  associated  words,  60, 
61 ;  so  called  instead  of  colony, 
63;  power  to  govern,  64;  Treaty 
of  Paris,  65;  Government  of 
enemy,  78;  Power  to  cede,  148; 
Our  own,  how  acquired,  148; 
Possibility  of  acquiring  on  East- 
ern continent,  172 

Texas,  149 

Trade  with  the  enemy,  114 

Transportation,  by  water,  by 
land,  49 

Treaties,  the  power  to  make  an 
inherent  attribute  of  sover- 
eignty, 116;  Articles  of  Con- 
federation, 117;  international 
compacts  not  always  a  treaty, 
119;  postal,  Power  of  Post- 
master General  to  make,  120; 
Power  of  President  to  make, 
121-130;  Distinctions  of,  made 
by  Constitution,  Articles  I  and 
II,  12 1 ;  Exclusive  power  to 
make,  conferred  upon  President 
and  Senate,  121;  Power  to 
"make"  differs  from  power  to 
"negotiate,"  122;  of  General 
Arbitration  of  1905,  Article  I 


and  II,  129;  of  General  Arbitra- 
tion of  1908  and  1909,  130;  Two 
with  Great  Britain  and  France 
under  President  Taft,  negoti- 
ated but  not  ratified,  130-136, 
1 88;  Article  of  the  Constitution 
VI,  137,  157,  158;  when  supreme 
law,  138;  regulating  foreign 
commerce,  151,  152;  Field  on, 
152;  supremacy  over  State 
power,  155;  limited  by  inter- 
national law,  155,  156;  supreme 
law  of  the  land,  159;  Supremacy 
of,  159-165;  Chief  Justice  Mar- 
shall on,  162;  Making  of,  not 
limited  by  State  powers,  164 
Treaty,  a  "scrap  of  paper,"  6, 
140;  neutrality  of  Luxembourg, 
6,  7;  of  peace  with  Great  Bri- 
tain, 38;  Territory  acquired  by, 
53;  of  Paris,  65,  82;  of  Amity 
and  Commerce  with  France, 
117;  Usual  meaning  of,  "a  com- 
pact between  independent  na- 
tions," 119;  an  international 
compact  not  always  a  treaty, 
119;  120;  State  has  no  power 
to  make  foreign,  122;  negotia- 
tions of,  through  diplomatic 
channels,  123;  with  Indian 
tribes,  124;  Jay,  125;  how  rati- 
fied, 126,  127;  consent  of  Senate, 
sometimes  haste  essential,  128; 
general,  for  arbitration,  129; 
Article  II,  129;  special,  130; 
not  primarily  a  law  of  the  land, 
137;  when  executory,  138;  may 
repeal  Act  of  Congress,  139, 151 ; 
Chinese,  139;  Power  of  Con- 
gress to  abrogate,  139;  Moral 
requirements  of,  142,  143;  when 


INDEX 


2OI 


invalid,  145,  146;  when  obliga- 
tory but  not  effective,  146;  on 
Guadaloupe  Hidalgo,  148,  150; 
duly  concluded  may  repeal  prior 
Act  of  Congress,  151;  provi- 
sions, necessity  of  supplemen- 
tary action,  153;  with  Great 
Britain  for  protection  of  migra- 
tory birds,  154,  155;  in  order  to 
be  valid  must  have  international 
basis,  155;  of  1783  with  Great 
Britain,  158;  supremacy  over 
State  laws,  160,  161;  rights  of 
foreigners,  164 

Treaty-Making  Powers,  general, 
116-140;  how  far  limited,  141- 
165;  has  always  been  vested  in 
the  Union,  116,  117,  118;  con- 
firmed by  Constitution  rather 
than  created  by,  118;  Charles 
Henry  Butler  on,  119,  150,  161; 
grant  by  constitution,  122; 
wisdom  of  vesting  power  in 
President,  124;  delegation  of, 
130;  is  it  plenary  or  limited, 
what  are  limitations?  141;  lim- 
ited by  Constitution  and  inter- 
national law,  141;  restrictions, 
143;  conferred  in  general  terms, 
143;  confined  exclusively  to  the 
nation,  143;  Limitations  of, 
result  from  principles  of  our 
government,  143;  shall  not 
change  Constitution,  143;  sub- 
ject to  fundamental  limitations, 
144;  Field  on  limitations,  144; 
145;  147;  150;  how  vested,  154; 
not  subject  to  police  power  of 
State,  155;  incompetent  to  deal 
with  questions  exclusively  do- 
mestic, 155;  never  possessed  by 


States  separately,  prohibited 
to  separate  States,  held  exclu- 
sively by  nation,  156;  of  nation 
must  be  supreme  in  fact  as  well 
as  in  theory,  159;  Butler  on, 
161 ;  Henry  St.  George  Tucker 
on,  161;  competent  to  accord 
privileges  to  Japanese,  163 

Tucker,  Henry  St.  George,  "Lim- 
itations on  the  Treaty-Making 
Powers,"  161 

Turkey,  Sultan  of,  3 

Union,  the,  a  theory  for  debate, 
1 6,  17;  Organic  system  of,  po- 
litical, 19;  Constituent  members 
of,  40 

United  States,  Theory  of  "is"  or 
"are,"  19 

Vattel,  45 

Waite,  Chief  Justice,  43 

War,  Sword  and  purse  requisites 
of,  94;  Power  to  declare,  71,101; 
Power  to  declare  includes  power 
to  be  effective,  96;  98,  99;  Civil 
rights  in  time  of,  99,  loo 

War,  the  Civil,  16;  condition  of 
National  finance  and  credit, 
93;  Conscription  Act  of,  106- 
108 

War,  Mexican,  148 

War,  Spanish- American,  17 

War,  the  Great,  not  alone  a 
European  affair,  5;  Effect  on 
our  future  relations,  17-23; 
Problems  following,  166-191 ; 
makes  an  end  of  old  order,  1 68; 
Political  and  spiritual  results  of, 
1 68;  what  it  has  taught,  177; 
bitter  lesson  of,  1 79 


202 


INDEX 


War  powers,  nature,  basis,  and 
distribution,  70-116,  division 
between  Congress  and  Presi- 
dent, 70-91 ;  Power  to  declare 
war,  71, 101;  Declaration  of  war, 
72 ;  Power  to  wage  war,  73 ;  74- 
78;  no  war  powers  in  President 
as  such,  73;  Extent  and  limita- 
tion of,  92-115;  John  Quincy 
Adams  on,  97;  emergency  pow- 
ers, 111-113 


Ware  vs.  Hylton,  160 

Washington,  "entangling  allian- 
ces," 17,  125 

Webster,  on  the  Constitution,  n 

White,  Chief  Justice,  in  selective 
draft  cases,  105,  106 

Wilson,  Justice  James,  38;  in 
Pennsylvania  Ratifying  Con- 
vention, 1 60;  on  Chisholm  vs. 
Georgia,  163 

Wooley,  Professor,  149,  150 


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